Table of Contents
INTRODUCTION
Mutual Divorce is the easiest way to obtain a Divorce decree in India.
Mutual Consent Divorce is Granted by The Family Court when Both parties to marriage Mutually agree to Divorce i.e. Husband and Wife.
Divorce by Mutual Consent is given under Section 32B. It states that both the husband and wife can together file for mutual divorce upon the ground that they have been living separately for a period of one year or more, and that they have not been able to live together.
Laws related to Mutual Divorce
In India, there are many religions and they have their separate personal laws upon which one person’s religion belongs, so a person’s religion determines which law shall govern their marriage and Divorce Procedure.
The Hindu Marriage Act, of 1955 applies to those belonging to the Hindu, Sikh, Buddhist, and Jains religions.
Special Marriage Act: applies to those Couples who have opted for Court marriage or Couples belonging to Different Religion.
Divorce Act, 1869: Applies to those belonging to the Christian Religion
The Muslim Marriage Act, of 1939 Governs the laws Related to Marriage and Divorce for Muslim Couples.
Hindu Marriage Act, 1955
Section 13B of the Hindu Marriage Act, 1955 has given both husband and wife a right to get their marriage dissolved by Mutual Consent Divorce.
13-B. Divorce by mutual consent.-
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
Special Marriage Act
Section 28 of the Special Marriage Act, 1954 provides for Divorce by mutual consent for those who have registered their Marriage under the Special Marriage Act. Special Marriage Act applies to Inter-Religion Marriages and Court Marriage
Divorce Act, 1869
Those married Under Christian Laws can Obtain a mutual consent divorce under Section 10A of the Divorce Act, of 1869
The Muslim Marriage Act, of 1939
Under Muslim Law, there are two forms of mutual consent divorce, namely:
Khula and Mubarat
In both these forms, the wife agrees to part or let go of her dower or a part of some other property. As per Muslim Law in a case of mutual consent divorce, the wife needs to pay some compensation for dissolving the matrimonial union.
Under Khula, the wife gives or agrees to give a consideration to the husband for her release from the marriage tie. Relieving the husband from payment of Mahr to the wife is also a consideration.
Under Mubarat, both husband and wife are against the continuation of the marriage and want to separate.
- Either the husband or the wife can make the offer.
- The other must accept it.
- When accepted, it becomes irrevocable
- Iddat period necessary
Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end. However, the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaq, otherwise no divorce would result.
In both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both these forms, a divorce is essentially an act of the parties, and no intervention by the court is required.
Advantages of Filing Mutual Divorce
- Divorce By Mutual consent is the fastest way to obtain Divorce therefore it saves time, money, and energy.
- Unnecessary quarrel amongst Couple is avoided
- Privacy is safeguarded by the Couple.
Requirements For Mutual Divorce are as follows
- Husband and Wife have to be living Separately For 1 year.
In the case of Christians, 2 Years of separation is Prescribed. - This separation means no Congenial Relationship for the prescribed period; and
- Husband and wife mutually agreed to the desire to dissolve their marriage.
The couple have to Mutually agree upon certain facts Before Filing the petition
- Custody of child;
- Alimony (lump sum maintenance to be decided between parties;
- Return of items i.e. dowry, streedhan, etc;
- Litigation expenses
Facts before filing Mutual Consent Divorce
- One year separation period Must be before Filing The petition and two years in the case of Christians.
- The couple can Submit a Joint petition For mutual Divorce in the Family Court or District Court where:
i. Where they Last Resided
ii. Where the marriage took Place
iii. Where the Wife Resides
iv. The entire process takes 6 Months.
v. Couple can extend the period of the second motion till up to 18 months
vi. This period can be shortened to 3 months by Filing a separate application to waive off the Cooling period of Six months. (This entire Depends on the Discretionary powers of the Judge)
Documents Required
- Proof of Address of Both parties i.e. Aadhaar Card/Passport/Electricity Bill/Ration Card (either one of them)
- Marriage Certificate
- Wedding Card
- Marriage Photograph
- Passport 4 Passport size Photographs
Procedure to File Mutual Consent Divorce Petition
Petition to file for Mutual divorce
File a Joint petition in the Family Court/District Court in the Correct Jurisdiction mentioned in the Graph given above. the petition should contain that both are unable to live together and have mutually agreed to dissolve the marriage and that they have been living separately for a period of one year or more. the petition is to be duly signed by Both parties.
After the petition is filed and accepted by the Court date for the First motion is given (in some places the same day of Filing)
The respective lawyer will present the Mutual petition before the Hon’ble judge.
After Critically examining the documents and the petition presented in the court. The Hon’ble judge may upon being satisfied direct the court to record the statements of the parties, then the parties have to both sign and give a thumb impression in the petition (party’s statements to be recorded on oath) and submit it before the Judge. The Court will then grant the first motion.
Cooling-Off Period
After the Completion of the First motion, a Cooling period of six months is given, before the Second motion can be filed.
This period is given to the couple to reconsider their decision. If they agree to cohabit and give each other a chance, the couple may appeal before the court to cancel the mutual Divorce petition, which the court will happily do so.
After six months of the first motion or at the end of the reconciliation period/cooling off period If both parties still don’t agree to live together and desire to go for the second motion. they may file for a second motion between a time frame of six to eighteen months.
The second Motion also known as the Final hearing of a Mutual Consent Divorce includes parties having to appear and record their statements before the Family Court.
Divorce Decree
Finally before Granting a Divorce Decree the hon’ble court will satisfy itself that both parties have settled matters related to alimony, custody of a child, maintenance, property, and other things amicably and that there remain no disagreements between the parties. the court will finally grant a Divorce Decree.
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