From dresses to themes, values and culture all go hand in hand when it comes to marriages in India. As per the tradition and culture of India, marriage is a sacred pact, and it must be protected at all costs. But there comes a time when the marriage fails to survive, and the same cannot be restored.
From dresses to themes, values and culture all go hand in hand when it comes to marriages in India. As per the tradition and culture of India, marriage is a sacred pact, and it must be protected at all costs. But there comes a time when the marriage fails to survive, and the same cannot be restored, and after that its Mutual Divorce.
Grounds for Divorce
Often such cracks turn into a legal battle for right, wrong, maintenance, custody, properties, etc. these litigations conclude after a long time. To subside such a long waiting period, parties prefer mutual divorce. There are certain grounds under which any of the parties can initiate divorce, which are stated as under:
- Cruelty: Ill-treatment of any kind, whether physical, mental, or emotional, can be a valid ground for divorce.
- Unsound mind: If any of the parties is an unsound mind is a valid ground for divorce.
- Bigamy: When the husband has more than one relation, however, it is an exemption under Muslim Law subject to 4 wives.
- Desertion: If any parties desert the spouse for more than two years would become a valid ground for divorce.
- Disease: If any parties get contracts with a life-threatening contagious disease, it is held valid ground for divorce.
- Renunciation: It is a valid ground for divorce if any parties renounce the world and its affairs.
Laws Related to Divorce
India, being a diverse country, has different laws for different religions. The Hindu Marriage Act, of 1955 includes Divorce laws for Hindus (including Sikhs, Jains, and Buddhists). Muslims have their Divorce laws, the Dissolution of Marriage Act, 1939, and the Muslim Women (Protection of Rights on Divorce) Act, 1986. Inter-religion marriages come under the purview of The Special Marriage Act, of 1954.
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Contested Divorce
It is the most common form of divorce, as in the majority of cases, marriage faces an obstacle with no recovery, and parties often end up with an imbalance. Thus, divorce is filed by either party, and the other party defends the case and counters it with claims. A contested divorce is time-consuming, and once the case is concluded in favor of one party, the other suffers a huge financial and emotional lash back.
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Mutual Divorce
When both the parties (i.e., husband and wife) agree to live separately and believe that dissolution of marriage is the best option for them, only then can mutual divorce happen.
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Mutual Divorce under Hindu law
As per section 13B of the Hindu Marriage Act, 1955, Mutual Divorce Alimony can be filed after fulfilling the prerequisite conditions:
- The parties must not be living under the same roof for a minimum period of one year.
- They have failed to live together, and no adjustment or reconciliation is possible, or adjustment is possible between the parties, and they have failed to live together.
- The parties can withdraw the petition to divorce even at the instance of one party. This can be done within six months from the date of the presentation of the petition for mutual divorce case in India.
- The parties to the agreement must consent freely to the dissolution of the marriage.
Divorce on mutual consent can only be filed before the Hon’ble Family Court and no other form of divorce will be held valid except for the family court’s order. This must be filed as a joint petition by both parties, and it must be presented before the appropriate family court.
The statements contained in the petition must be on oath and signed by both parties. The reason for the differences must be stated in the petition, and the parties should have exhausted all remedies to settle their differences in marriage.
Once the mutual divorce petition is filed, scrutinized, and gets a final number, both the parties will be required to appear before the family court and adjudicate the proceeding.
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Mutual Divorce under Muslim Law
As per the general provisions of law, divorce can be judicial or extrajudicial. Divorce under Muslim Law is an extra-Judicial remedy. As per Islamic law, marriage is an act and contract between the parties, and there is no need for a court’s intervention. Under Muslim law, there are two types of mutual divorce – Khula and Mubarat.
Khula is a kind of divorce where the wife desires to divorce the husband and initiates it. The husband cannot revoke/cancel the said khula and cannot go back for restoration of marriage.
Mubarat is a form of mutual divorce where both parties agree to dissolve the marriage. Any party can desire a divorce, but the other party must accept the proposal without objections.
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Mutual Divorce under Christian Law
Christian divorce comes under the purview of the Divorce Act of 1869. Section 10A defines divorce as Mutual Divorce under the Act. It must be filed before the appropriate Court, i.e., Family Court, and followed according to the procedure prescribed for section 13B of the Hindu Marriage Act.
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Mutual Divorce under Parsi Law
Parsi have their laws under the Parsi Marriage and Divorce Act, of 1936. Rules for mutual divorce are laid down as per section 32B of the said Act, and there are certain preconditions that the parties must fulfill before filing a divorce in the Family Court.
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Divorce of NRI
Firstly, NRIs can marry under any applicable laws prevailing in India with any Indian citizen. Suppose the resident or NRI institutes any divorce. In that case, it can only be dissolved under the relevant circumstances in which the parties got married before the appropriate Court of law to get a decree in the said divorce.
How Much Does It Cost to Initiate a Divorce Proceeding?
In short, divorce on mutual consent is far more simple and does not require tedious paperwork altogether. Still, seeking a legal professional is highly recommended as it may sound simple, but the procedure requires more than paperwork. The cost of proceedings is completely based on the nature of the dispute, the quality of professionals, and jurisdiction. Thus, there is no fixed or definite cost estimation as the cost changes from situation to situation.
Arpit Garg Vs. Ayushi Jaiswal
Bench: Justice Pradeep Kumar, Justice Shashi Kant
High Court of Allahabad, on 6th May 2019.
- This appeal has been filed in the High Court (family court) Allahabad. The application is filed jointly by the parties for mutual divorce under Section 13(b) of the Hindu Marriage Act; the Court rejected the petition filed within one year of separation.
- As provided under Section 13 (b), the period stipulated by the legislature is fixed such that the parties get time for introspection. The period is given under Section 13 (b) (1) of the Act is mandatory and can’t be renounced. The provision to Section 14 of the Act is meant to mollify the effect of a 1-year limitation when the divorce is taken under Section 13 of the Act.
- The Court doesn’t find any illegality or infirmity within the challenged order given the above. The petition was filed without following the due process of law and failed to comply with the divorce prerequisites.
Smt Surestha Devi Vs. Om Prakash
Bench: Shetty, K.J. (J), Agrawal, S.C. (J)
Decided On: 7.02.1991
- An examination of Sections 13-B and 23(l)(b) of the Hindu Marriage Act, 1955 reveals that the mutual consent of the parties at the filing of the petition does not grant the Court the authority to issue a divorce order under mutual consent. The waiting time of 6-18 months is intended to allow either party or both parties to change their minds before the joint motion. Nothing in Sub-Section (2) of Section 13-B of the aforementioned Act stops either of the Spouses from becoming a party to such a joint move.
- The Bench conducted a thorough examination of the relevant parts. It concluded that mutual consent obtained at the filing of the divorce petition was insufficient to grant the Court the jurisdiction to issue a divorce judgment based on mutual consent. The parties needed to have the same mutual consent when making the joint motion after six to eighteen months, during which either party could rescind their consent.
Divorce can be painful and exhausting, and therefore, it is recommended to get in touch with experts who can ease the process for you. To find out more about divorce on mutual consent and the other types of divorces, contact us on Vakilsearch, and get to know all types of remedies you can claim.
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