Divorce

Things to Know Before Filing Mutual Consent on Divorce?

Before filing a mutual consent on divorce, one needs to know the importance of the cooling-off period, various considerable factors, and the ways to waive it.

A recent case granting divorce by mutual consent highlighted that you should not read a judgment the same way as a statute or interpret it with rigidity. This positive precedent gives individuals more control over their private marital affairs and decreases state involvement in citizens’ lives. This article highlights what is divorce by mutual consent, what is the cooling period, and how to waive off the cooling period.

What is Mutual Consent in Divorce?

If both parties agree to dissolve their marriage cordially, it is more peaceful than fighting in Court and slandering one another. They may File a petition at a District Court under amendment Section 13B of the Hindu Marriage Act, 1955 so that the court can grant them the divorce decree. The divorce will not be affected by proceedings before the Panchayat. It requires processing through Matrimonial Courts.

What is Cooling-off Period in Mutual Consent on Divorce?

The Hindu Marriage Act, 1955 Section 13-B allows couples to seek divorce by Divorce on mutual consent. Consensual divorce stipulates that both spouses agree to peaceful separation.  

It is easy to legally dissolve a marriage by mutual consent. Section 13-B (2), Hindu Marriage Act, 1955, states a six-month cooling period between the first and last motions for divorce to explore the possibility of settlement and cohabitation. This cooling period is also known as the statutory period.

When Can Cooling-Off Period be Waived Off?

You can consider the following questions when you want to consider waiving the cooling period:

  1. How long did the marriage last?
  2. How long was the couple apart?
  3. Possibility of reconciliation
  4. How long was the couple together?
  5. How long has the litigation been pending?
  6. Existence of any other proceedings between the parties
  7. Whether the couple has a child/ children together
  8. Whether the parties reached a free settlement regarding maintenance, Alimony, or child custody.

What Conditions Can the Cooling Period be Waived-Off?

The Hon’ble Supreme Court ruled in Amardeep Singh V Harveen Kaur that mutual divorce can be granted if the six months cooling period is waived. Section 13B (1) deals with the Court’s jurisdiction.

Also, it addresses the petition’s sustainability, so the parties can’t repeal it. However, Section 13B (2) is administrative and must not be repealed unless the Court examines all circumstances and details in every situation that might allow for reconciliation. Article 142 is not mandatory. It was useful historically for Courts to not allow time in exceptional circumstances. The Court noted that Amardeep’s case was not mandatory.

If a party wants to waive off the statutory 6 months waiting period as per Section 13B (2), the Court will require the following before they make the final decision:

The six months statutory period described in Section 13B (2) is essential. In addition, the one-year statutory period as per Section 13B (1) of the parties’ separation has already ended before the first motion itself. 

All mediation or reconciliation efforts, including Order XXXII A Rule 3 CPC or Section 23 (2) of the Family Courts Act and Section 9 for reuniting the parties have failed. Also, there are no chances of success with any more efforts. The parties can genuinely settle their distinctiveness, including child custody, alimony, or any of such issues between themselves. 

The period of waiting can only prolong their agony. Also, after the first petition ends, in the first week, the waiver application submission is possible in these situations. You can do it by applying the reasons for the request for the waiver. The Court can change the control over the second waiver period.

The Judgments of Different Courts

Case 1:

Consensual divorce requires that both husband and wife agree to divorce, and both seek divorce as a solution. The High Court of Rajasthan considered this question in Suman Vs. Surendra K’s case. This interregnum period is present to allow the partners to think about their steps. One of the partners, or both of them, can have other considerations during the interregnum period. After that, they can decide to end their marriage.

Case 2:

The Delhi High Court Division Bench in Rajiv Chhikara Vs. Sandhya Matu’s case ruled that the act of restraining from mediation constitutes mental cruelty. In this case, the Court observed that the couple had been separated since 2009 and that the relationship they had was irreparable. In these circumstances, the Court ordered that one of the partners maintain the marital bond. 

Case 3:

The case of Dinesh and Ranjana Gulati was one in which the husband brought contempt for the procedures against his wife. This was based on a petition he had filed against his wife, claiming that a housewife failed to comply with her spouse’s request. 

The Family Court: https://districts.ecourts.gov.in/ launched Suo Motu contempt proceedings in accordance with the spouse for not complying with the consent decree. Also, the Division Bench ruled that an order to start Suo Motu contempt proceedings fails to recognize the mutuality element of Section 13B. Once the parties were not able or unwilling, the only recourse available was to reinstate the authentic divorce petition.

Can Mutual Consent on Divorce Be Withhold?

If one of the parties changes their mind and wants to save their marriage, they can file a petition before the Court. The application states that he/she wishes to withdraw consent for the divorce proceedings as they want a second chance for their marriage. If both spouses agree to the withdrawal, the Court may dismiss the petition.

Conclusion

Consensual divorce is when the spouses end their marriage on their own. The cooling-off period can positively affect couples by allowing for a fresh perspective. While mutual consent on divorce is the best way to end a marriage, it’s important to consider the future effects. Both spouses must strive to end their marriage respectfully, without causing more trouble or harm than already done.

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