Divorce was never so easy. whenever we think of divorce the first thing which comes in our mind is long prolonged court room drama. The court with the introduction of divorce by mutual consent is so easy, no one can think of.
The other benefit of divorce by mutual consent besides quick and easy is, that the blame game and court room drama is avoided and the relation is not deteriorated as its an amicable solution reached by both the party and one has not to describe and take there personal differences and issues in court.
First petition,
6 months cool off period to reconcile
Second motion.
Different laws on divorce for different religion in India.
Divorce is covered by personal Law.
Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872.
Hindus (which includes Sikh, Jain, Budhhist) are governed by Hindu Marriage Act, 1955.
Special Marriage Act,1954. is a secular law which covers marriage registered under special marriage act.
Mutual Consent Divorce in case of Christian Couple
Mutual Consent Divorce in case of Christian Couple is governed by The Divorce Act, 1869, under Section 10 A.
A petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
Secondly on the motion of both the parties made no earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the avertments made in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.
The period of 6 to 18 months provided in
section 13(B). is a period of interregnum which is intended to give time and
opportunity to the parties to reflect on their move. In this transitional
period the parties or either of them may have second thoughts.
Hindu Marriage Act, 1955.
Section 13(B) in the
Hindu Marriage Act, 1955
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 a
marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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 not
earlier than six months after the date of the presentation of the petition
referred to in sub-section (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.
i) The period
of 6 to 18 months provided in section 13(B) is a period of interregnum which is
intended to give time and opportunity to the parties to reflect on their move.
In this transitional period the parties or either of them may have second thoughts.
Suman v. Surendra Kumar, AIR 2003 Raj 155.
ii) The period
of living separately for one year must be immediately preceding the
presentation of petition. The expression ‘living separately' connotes not living like husband and
wife. It has no reference to the place of living. The parties may live under
the same roof and yet they may not be living as husband and wife. The parties
should have no desire to perform marital obligations;
Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
iii) The period
of six to eighteen months time is given in divorce by mutual consent as to give
time and opportunity to the parties to reflect on their move and seek advice
from relations and friends. Mutual consent should continue till the divorce
decree is passed. The court should be satisfied about the bona fide and
consent of the parties. If there is no consent at the time of inquiry the court
gets no jurisdiction to make a decree for divorce. If the court is held to have
the power to make a decree solely based on the initial petition, it negates the
whole idea of mutuality. There can be unilateral withdrawal of consent. Held,
that since consent of the wife was obtained by fraud and wife was not willing
to consent, there could be unilateral withdrawal, of consent;
Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
Jurisdiction of the court ?
The Married couple last resided. The Family Court has the
jurisdiction.
How to file mutual consent
divorce petition?
The divorce
petition is in the form of affidavit, which is to be
submitted to the family court. After the filing of the petition and recording
the statement of both the parties, the court generally adjourns the matter for
a period of 6 months.
Conditions
and Requirements.
The marriage is
legitimate only under the following conditions:
They should be
legally married. That the marriage is legal
The agreement
between the two parties must be free and voluntary and without compulsion,
undue influence, or threat of violence. the document is prepared called
memorandum of understanding or is a simple document which states the condition
of divorce between the parties as to child custody. Maintenance money .Distribution
of Assets. Child visitation right and any other legal matter which the party
things fit.
Mutual Consent Divorce in case of Court Marriage
Mutual Consent Divorce in case of Court marriage is
governed by The Special Marriage Act, 1954 under Section 28.
A petition for divorce may be presented to the District
Court by both the parties together 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.
Secondly on the motion of both the parties made no earlier than six months
after the date of the presentation of the petition referred to it in
sub-section (1) and not later than 18 months after the said date, if the
petition is not withdrawn in the meantime, the District Court shall, on being
satisfied, after hearing the parties and after making such inquiry as it thinks
fit, that a marriage has been solemnized under this Act, and that the averments
in the petition are true, pass a decree declaring the marriage to be dissolved
with effect from the date of the decree.
The main requirements for Mutual Consent
Divorce under section 13(B) as follows:
The couple has been living separately for a period of one
year (two year christian) or more
The couple has not been able to live together and
The couple mutually agreed that the marriage be
dissolved.
The procedure goes same first petition is filed and then
after 6 months the second petition is filed.
The process is very simple the M.O.U. (agreement) is prepared and is
signed and attested and with other document is filed in the court the court
gives a date to appear.
on the given date the couple appeared before the family
court and and the magistrate after making sure the due process gives the next
date to appear which is after six months after the expiration of six months and
before 18 months the couple again appear in the court with all the original Ids
and divorce order is typed and that’s it it’s a divorce.
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