Mutual Divorce, as the term implies, is filed when both of the spouses are in consent to dissolve their marriage by a decree of divorce on more than one ground. A petition for mutual divorce can be filed by the provisions provided in section 13B of the Hindu Marriage Act 1955.
When a married couple decides to end their marriage legally, they can file a petition jointly before the court. In this case, both parties do not make an accusation against each other. The main objective is the peaceful dissolution of marriage here, as opposed to ‘contested divorce’, where the other party does not agree to a mutual divorce. But mutual divorce can be filed even though the other party does not want to.
Consensus between the husband and the wife can be reached in two ways, one is the arrangement of alimony and the other is child custody. As for the matter of maintenance, there is no maximum or minimum limit, and in the case of child custody, it can be arranged between the divorcing parents by discussion. The procedure of a mutual divorce initiated by filing a divorce petition in the form of an affidavit.
When can Mutual divorce be filed?
The husband and the wife have to live separately for at least a year or more. For getting a decree the parties may have to wait for another period of six months as per section 13B(2). They both have to agree that they cannot live together anymore and there is no possibility to restore their marriage. When the decision to separate is made, a joint petition for a decree of divorce is filed in the family court, which will have to be signed by both parties.
- After filing the petition both parties have to be present in the family court. The court will then scrutinize the documents and the legal procedure will begin.
- The court may make an effort a reunion between the parties, but if it is not possible then the matter is processed for further development
- After that statement from both parties is recorded and an order for the first motion is delivered. After that another six months is given before filing a second motion, the highest time period for a second motion is 18 months. However, a recent Supreme Court judgment states that this six month waiting period can be waived if the court decides so. If a party decides not to go for mutual divorce in the given time period then the court does not grant the divorce decree. In this case, the other party can file a normal petition on the grounds of cruelty, desertion, insanity, leprosy, or venereal disease.
- After appearing for the second motion the case proceeds to a final hearing.
- Ultimately both parties have to on total agreement on alimony, custody of children, property, maintenance, etc. Then can the decree of divorce be passed by the court to make the divorce final? A Hindu divorce or divorcee must wait for 90 days to remarry after a divorce decree only if the losing spouse has not decided to challenge the dissolution of marriage.
Different laws for different religion in India for Divorce Process:
Hindus including Sikh, Jain, and Buddhists are governed by the Hindu Marriage Act, 1955. Christians in India are governed by Indian Divorce Act-1869 and the Indian Christian Marriage Act, 1872. Muslims are governed by Personnel laws of Divorce and the Dissolution of Marriage Act, 1939, and The Muslim Women Act, 1986, and they’re also a special secular law known as Special Marriage Act, 1954.
Matters to settle before the procedure:
The parties have to agree upon who will get the custody of the child if the couple has a child of children. The other important aspect is the arrangement of alimony. Alimony is financial support given to one marriage partner to another. It could be given as a time sum or monthly basis. Settling the ownership of property, assets, bank account and other things between husband and wife is also an important issue.
- The documents necessary for the procedures are as follows: Marriage Certificate
- Address proof for both husband and wife, Four Photographs of Marriage, Income proof,
- Professional Details, Documents of Property, Evidence for separate staying for a year
- Evidence regarding failed attempts of reconciliation.
It takes six months to dissolve a marriage by mutual consent, however, petition for divorce cannot be filed in the first year of the marriage. But obviously it varies from case to case and depends on the case itself.
The nominal court fee is 15 Rupees for the procedure of mutual divorce.
Time and Cost:
Since different religious beliefs exist in India, separate laws have been implemented for couples belonging to a different religion. The mutual consent divorce procedure in India is comparatively easier and fast for all religions. But contested divorce procedure usually complex takes longer time depending on the religions of the couples seeking a divorce.
Author : Yeasmin Biswas | College: Kingston Law College
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