DIVORCE BY MUTUAL CONSENT
Mutual Consent Divorce was brought by
the India Parliament vide Amendment in the year 1976 in the Hindu Marriage Act. Mutual
consent means that both the parties agree for peaceful separation. Mutual
Consent Divorce is a simple way of coming out of the marriage and
dissolve it legally. Important requirement is the mutual consent of the husband
& wife. The procedure of divorce with mutual consent in India is less
expensive and less traumatic as compared to the contested divorce procedure.
Section 13-B of Hindu Marriage Act 1965
makes provision for divorce by mutual consent on the ground that-
Ø
The
parties must be living separately for a period not less than one year. [It is
immaterial whether the spouses have been living separately by force or by
mutual consent. The parties just need to prove the condition of separate living
under the same roof of the matrimonial home or in separate residence by the
parties]. The court will not go beyond this statutory condition if this
condition is satisfied.
Ø
The
parties have failed to live together and that no reconciliation or adjustment
is possible between them.
Ø
There
is free consent from both the parties for the dissolution of such marriage.
Ø
The
parties are at liberty to withdraw the petition. It seems that the petition may
be withdrawn even at the instance of one party in course of six months from the
date of presentation of the petition. But when a joint motion is taken by the
parties after the lapse of six months but before the expiry of eighteen months
from the date of presentation of the petition for making inquiry, the
unilateral right of a party to withdraw the petition appears to be barred.
PROVISION’S IN THE LAW FOR MUTUALLY
CONSENTED DIVORCE
As we know there
are different acts for marriage registration, the same applies for divorce as
well, the law has different provisions as per the marriage acts which are :
Ø
Section
13B of the Hindu Marriage Act 1955(Period of separation = 1-year minimum)
Ø
Section
28 of the Special Marriage Act, 1954
Ø
Section
10A of the Divorce Act, 1869 (Period of separation = 2-year minimum)
Ø
Section
32B for Parsi Marriage Act 1936
Ø
And
under the sections of Christian and Muslim Marriage Act.
WHERE TO FILE A DIVORCE PETITION:
Ø
The
court can be one where couple seeking divorce last lived.
Ø
Place
where marriage had taken place.
Ø The court can be one where the wife is
residing as of present.
HOW MUCH TIME DOES THE WHOLE PROCESS TAKES
It takes minimum
six months to one year from the date of filing of the petition. It is different
from case to case & place to place.
DIVORCE PROCEDURE
Ø There are 2 mandatory appearances for
the couple to be made in the Family Court in a mutual consent divorce
proceeding.
Ø In a mutual consent divorce, both the
spouses act as Petitioners because both the spouses are in agreement to
dissolve their marriage.
Ø The first step towards initiating the
divorce procedure is to draft a joint divorce petition and file it at the
relevant Family Court.
Ø Accordingly, the spouses would present
their separate lawyers to represent them in the court.
Ø The mutual consent divorce petition
consists of a joint statement by the couple stating their incompatible
differences and that they can no longer cohabit together and therefore, should
be granted a divorce.
Ø The same joint petition further consists
the agreement relating to the custody of children, splitting of assets,
alimony, maintenance, etc.
Ø In the first motion, statements of both
the spouses are recorded and then signed on paper in the Court.
Ø After this, a 6 month cooling off period
(not mandatory) is given to the couple towards one final attempt for
reconciliation which is solely to provide one last hope for the couple to
re-think about their divorce and try and make things work out.
Ø After the lapse of the said 6 months
also known as the reconciliation period, if both parties still don't agree to
cohabit together, then the spouses have to appear for the second motion called
the final hearing.
A
recent Supreme Court judgement categorically stated that the 6 months
reconciliation period (cooling off period) is not mandatory in cases where the
couple has genuinely resolved all their matrimonial issues already and
therefore, the cooling off period can be waived off but depending upon the
discretion of the court.
Ø Besides this, if the second motion is
not made within 18 months, then the court will simply cancel the decree of
divorce.
Ø In addition, under the law it is clearly
mentioned that either of the spouse can withdraw their consent at any time
before the court passes the divorce decree.
Ø Above all, the most important
requirement for getting a mutual consent divorce is free consent of
each spouse. In other words, unless there is absolute agreement between
both the spouses to end their marriage and unless the court is completely
satisfied with the same, no divorce will be granted.
DOCUMENTS REQUIRED FOR DIVORCE WITH MUTUAL
CONSENT
Common Documents
are required for Filing a divorce petition.
Ø
Marriage
Certificate
Ø
Address
Proof - Husband and Wife.
Ø
Four
Photographs of Marriage.
Ø
Income
tax Statement of last 3 years.
Ø
Details
of profession and Income (Salary slips, appointment letter)
Ø
Details
of Property and Asset owned
Ø
Information
about family (husband and wife)
Ø
Evidence
of Staying separately for an year
Ø
Evidence
relating to the failed attempts of reconciliation.
MAINTENANCE TO BE AWARDED IN CASE OF
DIVORCE BY MUTUAL CONSENT
In cases of
divorce by mutual consent the alimony or maintenance is to be fixed by the
party through mutual agreement. As per the agreement between the divorcing
husband and wife (If they want it) a particular sum for alimony or maintenance
is to be given either by the husband to wife or wife to husband as the case may
be. Maintenance are generally decided on grounds such as- gross sum or such
monthly or periodical sum for a term not exceeding the life of the applicant
as, having regard to the respondent’s own income and other property.
CUSTODY OF CHILD AFTER DIVORCE BY MUTUAL
CONSENT
Since, the
divorce is by mutual consent the couple have to come to an agreement as of who
will hold the custody of the child.
Ø
Joint custody is the new legal solution situations where a
deadlock is created as both the parents want their offspring.
Ø
A
joint custody is such where only one of the parent will have physical custody
while both will have legal custody.[7]
Ø
Child’s wish and interest are kept in mind by the court all throughout.
CONCLUSION
Divorce by mutual consent provides an
opportunity of amicable resolution of disputes between parties and saves time
and money. The requirements as provided under this section are that before
filing a joint petition for divorce parties must be living separately for a
period of at least one year. As we mentioned out earlier living separately does
not necessarily connotes physical separation, what is essential is that parties
are not fulfilling marital obligations and not living as husband and wife. The
second requirement is that the parties have not been able to live together. The
fact that both the parties have filed a joint petition by mutual consent is
indicative of the face that parties have not been able to live together. Only
thing that is important is that the consent has been obtained freely and not by
way of force, fraud or undue influence as the whole purpose of mutual consent
will be vitiated if consent is not free.
By: Adv. Pooja Yadav
EXPERT JURIST LLP
