What Are The Indian Laws For A Mutual Divorce Case?

Mar 2, 2023

767 4 mins

It is referred to as Mutual Consent Divorce or Mutual Divorce when both husband and wife mutually agree they are unable to live together anymore and that the best solution is to divorce. The couple submits a Mutual Divorce Case petition jointly to the honourable court, without asserting any allegations against one another.

Divorce by Mutual Consent is one of the easiest and smoothest ways to get a divorce in India. Unlike in the West, divorce is still frowned upon in India. However, such attitudes are slowly changing due to social reforms, and women and men no longer have to stay chained to unhappy marriages. Since India has a lot of people from different religions, customs, and cultures living together, divorce laws are also segregated. Here’s a look at the Indian laws for a mutual divorce case as of 2017.

Indian Laws for Mutual Divorce Case :

For mutual consent divorce, Section 13B of the Hindu Marriage Act, 1955, serves as the main guideline for the law. However, as per this law, to file for mutual divorce, the husband and wife must have lived separately for at least one year. Also, the most important requirement is that both spouses must give consent for divorce freely and without any undue pressure or influence.

Essential Requirements for Mutual Divorce Case as per Section 13B

A joint divorce petition should be filed by both spouses at the District family court.
The provisions under this law apply to all marriages solemnised in India.
The spouses should have lived separately for at least one year. However, here living independently means that the husband and wife have not lived as a married couple. This essentially means that they have not upheld their conjugal rights.
The couple must make the Court see that they cannot live together anymore and that reconciliation has failed.
The petition can be withdrawn at any time if one of the spouses no longer consents.
If the Second Motion is not filed within 18 months, the petition will be cancelled.

Major Indian Cases for Mutual Divorce Case in 2017

The Suman vs. Surendra Kumar case showed the importance of the interregnum period. The Rajasthan High Court stated that such a period helped ensure that the couple was not rushing into a decision.
In the case of Sureshta Devi v. Om Prakash, the Supreme Court stated that the term living separately means that the couple is not living as man and wife. The term does not have to do with any geographical rules and is not concerned with their places of living.
Spouses cannot resile from the consent given, as a breach of the undertaking accepted by the Court, as shown by Shikha Bhatia vs. Gaurav Bhatia and Avneesh Sood vs. Tithi Sood. The Delhi High Court ruled in Rajiv Chhikara vs. Sandhya Mathu that resiling may amount to mental cruelty when it puts one spouse under tremendous psychological pressure.
The Supreme Court opined in the Smt. Marriage petitions can be withdrawn before the divorce decree is passed, as in Sureshta Devi vs. Om Prakash. However, Mumbai, Delhi, and Madhya Pradesh High Courts have stated that withdrawal can only be done during the first petition. According to the High Courts of Kerala, Punjab, and Haryana, either spouse must withdraw consent. A legal withdrawal must be made during the interregnum period to allow reconciliation.
The Delhi High Court has opined that couples who have filed a petition under Section 13B(1) or 13B(2) need not appear before the said Court for obtaining a divorce if they wish to withdraw their appeal. The distinguishing feature of Section 13B is that it gives the couples a right to unilaterally withdraw their consent.
In the case of Smruti Pahariya vs. Sanjay Pahariya, the Supreme Court stated that the absence of a spouse does not mark their consent. Before passing the divorce decree, the Court must make sure that both parties involved give their free consent for the divorce.
The Hirabai Bharucha vs. Pirojshah Bharucha case witnessed the High Court state that the Court must make every effort to the marriage.
The Division Bench of the Kerala High Court remarked that since the law allowed couples to withdraw their consent, the Court does not have to probe into the reason for their withdrawal.
In the case of Mr. Prakash Kalandari vs. Mrs. Jahnavi Kalandari, the Bombay High Court rules that the Court must ensure that consent given by the parties continues until the decree for divorce grants.
The Division Bench of the Gujarat High Court remarked that marriage is an institution that should sustain and that courts must try to make amends between the couple in all ways possible.
Furthermore, in a recent landmark judgement, the Supreme Court stated that the 6-month cooling-off period may wave if the Court deems it pointless. The Amardeep Singh v. Harveen Kaur case witnessed the Supreme Court state that the cooling-off period as per Section 13B(2), is not mandatory. The decision regarding the same is left to the discretion of the Court handling the case.

Mutual Divorce Case Procedure in India

The first part of the process is to file a mutual or joint petition for divorce at the family court. You must head to the Court and after hearing both parties, the Court will investigate and verify the documents. If the Court has satisfaction, it will pass the first motion.
The couple must wait for at least six months and a maximum of 18 months before filing the second motion.
At the final hearing, both parties will give their statements, and if the Court feels that all matters settle, it will grant a divorce decree, which dissolves the marriage.

Conclusion

Therefore, every religion has its own set of laws regarding marriage and divorce, which are different from one another. Please contact our team if you require assistance with legal matters.

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