Divorce by Mutual Consent in India

In India, one of the simplest ways of coming out of a marriage wherein the spouse is not happy and has no future is through divorce by mutual consent.  Under section 13-B, Hindu Marriage Act, the parties can file for divorce by mutual consent by filing petitions jointly in Court. Seeking this kind of divorce will decrease the trouble and pressure faced by spouses as compared to other procedure of dissolution of marriage. With an increase in the number of cases in Courts of India other ways for obtaining a divorce is time taking and creates lots of inconveniences, hence mutual divorce is hassle free and easy. However, it is essential for both parties to make sure that all the required conditions are fulfilled, such as both the parties agreed to the conditions without any disagreement and force. 

Duration for obtaining a divorce under mutual consent is 6months. It takes 6 months to 1 year from the date of filing of the petition.

Withdrawal in case of mutual consent

Divorce by mutual consent can be withdrawn by filing a petition before the Court stating that either of the parties does not wish to seek divorce under mutual consent. In that case, the Court grants no divorce decree.

Conditions essential for mutual consent :-

1. Parties are living separately for a period of not less than one year.
2. No reconciliation or adjustments are possible between them
3. Parties have given free consent to the agreement of dissolution of marriage
4. The parties are at liberty to withdraw the petition.

Petition for divorce by mutual consent

The petition for divorce by mutual consent can be filed at the following places-

1. Place of marriage,
2. Where husband and wife last resided together,
3. Place where the wife resides/stays at the time of filing of the petition.

Procedure for divorce by mutual consent

The petition for divorce by mutual consent must be filed by both the parties is in the form of an affidavit, which is to be submitted to the family court. Once the petition is filed, both the parties need to be present before the Hon’ble Court and record the statement. In the first motion, the Court generally adjourns the matter for a period of 6 months, which is termed as cooling off period between the parties, the time has been provided by the Court for reconciliation between the parties and solves the dispute.  After six months, the parties have to be present again before the Court for making a second motion confirming the mutual consent filed earlier. This is mandatory and it is only after this second motion that a decree of the divorce by mutual consent is granted by the Court.

Is the cooling off period in divorce by mutual consent mandatory?

 The cooling off period of six months is not mandatory. If at all the Hon’ble Court thinks fit, then it can waive off the cooling period. The parties who seek to divorce by mutual consent can request the Court to waive off the cooling period and not wait for another six months and proceed with the second motion as their decision is final and no scope of reconciliation is left.  

Hence, in order to save the marriage, the Hon’ble Courts give six months as cooling off period if there is a chance of reconciliation in the future and in these six months the Court asks the parties to follow the arbitration procedure.

 Maintenance in case Divorce by Mutual Consent 

In cases of mutual divorce, there is a requirement that the spouses have to mutually agree on the amount of maintenance, which will be provided by the husband to wife or vice-versa. The parties can mutually declare stating there is no requirement to pay any kind of maintenance. Following factors are taken into consideration for the amount of maintenance to be paid by either of the parties-

-The financial position of either of the spouse,

-Child custody,

-Duration of marriage,

-The health of the spouse, etc 

Mutual Divorce under Muslim Law

Under Muslim Law, there are two kinds of divorce by a mutual agreement called ‘khula’ and ‘mubarat.’ Divorce is a decision taken by the parties, and no interference by the Court is required. In both ‘Khula’ and ‘mubarat’ the wife shall go through the ‘iddat’ period.

Mutual Divorce under Christian Law

Under the Divorce Act, 1869, section 10A of the Act gives the provision for dissolution of marriage by mutual consent. A condition required for divorce by mutual consent under Christian law – No scope of cohabitation again in the future, parties living separately for more than one year and the parties agreed upon the dissolution of marriage mutually. 

A petition for mutual divorce can be presented by both the parties to the appropriate district court.

Mutual Divorce under Parsi Law

 Under the Parsi Marriage and Divorce Act, 1936, section 32B provides Divorce by Mutual Consent. A Condition essential for divorce by mutual consent under Parsi Law-

Both  the parties living separately for a period of not less than one year or more, and

Both the parties mutually agreed upon the decision for dissolution of marriage. Therefore, the petition for divorce by mutual consent under Parsi Law cannot be filled within one year since the date of marriage.  

Conclusion

Divorce under mutual consent is the fastest way to obtain a divorce and dissolved the marriage with utmost dignity without any quarrel. Hence, not every disagreement leads to ugly fights and separation, some disagreement may lead to an agreement for dissolution of marriage by mutual consent.

For more information, contact our team of experts at LawyerINC.