Mutual Divorce is the kind of divorce sought and obtained from the family court by filing a joint petition by both parties in a marriage on the basis of mutual consent. It is the quickest form of divorce for an irreparably broken marriage. Divorce is normally sought only when the husband and wife do not want to live together and continue their marriage relation any longer, despite the fact that Hindu marriage is a sacrament.
The Hindu Marriage Act, 1955, in its Section 13B, provides for dissolution of marriage by mutual consent. Any Hindu marriage solemnized before or after the date on which the section is brought to force (it came into force on 27 May 1976) can be dissolved by the court based on a joint petition of both the spouses, provided the mutual consent obtained is based on free will, but not by exercise of any force, fraud or undue influence.
Going ahead with divorce
The parties desirous of Mutual Consent Divorce are always perplexed as to how to initiate the process, the role of the court, the terms and conditions of the divorce, the issues of maintenance and child custody, the duration of divorce proceedings, the place where petition for mutual consent divorce can be filed and such other allied questions. This write up aims to address some of those questions.
At the outset, the spouses should talk to each other about the future course. If both spouses reach out to a conclusion that marriage has irretrievably broken down and they should opt for bringing down the tension of breaking apart as smoothly as possible, then Mutual Consent Divorce is a sure prescription to avoid the futility of long drawn litigation. And that is the easiest way out in such an arduous situation. The petition for mutual consent divorce is a joint petition of both the parties.
Workout the agreements
Prior to filing of the petition, both the spouses should come to mutually agreeable terms and conditions in regard to alimony, maintenance, custody and education of children, and such other allied matters, on their own. There can be some sort of agreements between both the spouses even in the midst of many other disagreements.
If children are there in a marriage, the spouses should decide as to what kind of child custody they prefer, who is going to have the physical and legal custody of them, what the details of visitation rights are, and such other things. The welfare of the minor child/children is the paramount issue to be considered by the court in allowing child custody. As per law, both parents are equally competent to take the custody of the children. It is the mutual agreement between parties which will prevail. Parties can agree for joint custody or shared parenting in mutual consent divorce. The ultimate interest of the child should be the determining factor that should govern the decision on child custody.
Settlement of financial matters is the next important item. They include alimony, maintenance, house, educational expenses, marriage expenses, dowry, joint investments, joint accounts, and such other things.
In the joint petition for divorce, the petitioners can submit to the court that all the claims between the parties are settled and no claims between them are pending then. Alternatively they can include as part of the petition the agreements arrived at between the parties.
Place of filing the petition
On arriving at such a mutual agreement, both the parties can file the joint petition in the Family Court of the concerned area or district. The petition for mutual consent divorce can be filed at any of the following place:-
- Place where marriage had taken place
- Place where husband and wife last resided together.
- Place where wife is residing at the time of filing of the Petition, or the
- Place where the respondent resides when filing the petition
Please attach the ID proofs along with the petition. The petition is to be filed along with an affidavit stating that the contents of the petition are true. They can also include along with the petition a memorandum of understanding between the parties in regard to child custody, maintenance, property sharing or such other matters that are already settled.
Divorce Petition only after one year
Mutual Divorce petition can be filed only after separation of one year since the date of marriage. No court has any authority to accept any divorce petition before completion of one year unless there is exceptional hardship or depravity that may occur to the parties.
On submission of a petition (separate petitions are filed in some states like Delhi), both parties will have to appear in person and make statements in support of the petition before the court on oath. The statements will be recorded. It is commonly called First Motion.
Then the court will grant 6 months cooling-off period to the couple to reconsider their initial decision and come to a firm conclusion based on what they think and feel during the interlude of separation. During the period of six months, both parties have liberty to withdraw their consent for divorce. If their resolve is not to press the petition, they can withdraw the petition and continue their married life as usual.
Otherwise, they can proceed with the petition so as to legally end the marriage. After the expiry of six months but within eighteen months, the couple will have to reappear before the same court to state their resolve in regard to the petition. That is commonly called Second Motion.
However, the Hindu marriage act does not speaks about two motions as being in vogue in some states. It speaks about only about one motion to be made in between the six and eighteen months after filing the petition, under Section 13B (2).
After moving the second motion, the court is convinced that the parties are firm in their stand and the nature of the relationship is not so promising enough for reconciliation, the court on making necessary inquiry, may allow decree of mutual divorce. Then the marriage gets dissolved.
However the parties can withdraw the consent at any time before passing the decree. If so, the court cannot issue a divorce decree based on the strength of the initial petition alone. The consent given by one party at the time of filing the petition is revocable.
Waiving of six months cooling period
The six months cooling period in between the first motion and second motion for passing a divorce decree is mandatory in normal case. But the court can waive it in exceptional case.
No court is normally competent to issue a direction contrary to any provision of law. But when the law is procedural in nature the court can, in exceptional cases, waive the provision so as to foster the object of the statute. The provision on six months cooling period is procedural in nature and such a waiver can be granted under law, as per a catena of judgments of the Supreme Court.
The purpose of providing the cooling period is to enable the parties to rethink, reconcile and rework their failing marriage relation. But when the perpetuation of marriage between unwilling parties serves no much purpose, the keeping of six months cooling period as mandatory becomes quite unnecessary.
If the parties are separated for a longer period than the six months, the court can consider waiving the period. When the marriage is totally unworkable, emotionally dead, or beyond salvage there is no need to put the parties to further agony of keeping it live for longer. In such a desperate situation they would be permitted to resettle their lives, says the apex court.
Easiest form of divorce
Mutual Divorce is the easiest, cheapest and fastest form of divorce. It is a stress free way of getting divorce. It normally takes six to eighteen months to get a decree. If both the parties do not agree for divorce within eighteen months, then the petition will automatically get dismissed.
Representation by power of attorney
In mutual consent divorce, the spouses have to present before the court to record their statements for the first and second motions. If any party is unable to come because of some subtle reasons, he/she can appear before the court through holder of a power of attorney. Such a holder of power of attorney may preferably be a family member of the spouse.
The court has discretion to allow use of video conferencing and permit representation of the parties through close relations when the parties are unable to appear in person.
NRIs can file petition in India
The non-resident Indians (NRIs) who got married in India can also file for a mutual divorce in India. The couple can also file a divorce petition in a foreign country, under the law of that country in which the spouses reside. The decree passed by a foreign court is conclusive as per Section 13 of the Civil Procedure Code, 1908.
Divorce before Notary invalid
The notary designated under Indian Notaries Act, 1952 has no power to grant mutual divorce under any provision of law. Any marriages governed by the Hindu marriage act can be dissolved by mutual consent only through the proceedings of a court and its decree, but not by any other means.
A valid decree of divorce granted by a family court of the appropriate jurisdiction is the only sure way to legally end a Hindu marriage in India. After a decree of divorce, the parties in the marriage will be restored to the legal status prior to that of their marriage.
1. The scope of period of six months is described in Devinder Singh Narula v Meenakshi Nagia 2012 (7) AIR (SC) 2890
2. The Supreme Court says the period of six months under sub-section 2 of Section 13B cannot be taken as mandatory in its judgment on 12 September 2017 in Amardeep Singh V Harveen Kaur.