While the concept of divorce was met with criticism in the past, the times are changing in India. Women no longer feel the need to stay in unhappy marriages for the sake of society. Therefore, we see more and more couples agreeing to split into amicable terms, which was something u heard of before. But, many women around the country are still unsure of how divorce works in India. So, here’s a look at everything you need to know about the procedure Mutual Divorce in India.
Table of Contents
What is Mutual Consent Divorce?
As the name suggests, a mutual consent divorce is when both the husband and wife want to terminate the marriage. It is a decision taken by mutual consent, and hence, the process is a lot smoother than divorce by other means. As per the Hindu Marriage Act, 1955, both spouses have the right to file for the dissolution of their marriage. Furthermore, the Act also allows both parties to file for a mutual consent divorce together.
Conditions to file for a Mutual Divorce
As per Section 13B of the Hindu Marriage Act, 1955, the following conditions must be met to file for a mutual divorce.
(i) Both spouses must live separately for at least one year.
(ii) Both spouses feel that they cannot live together.
(iii) Both the husband and wife mutually agree that their marriage has collapsed
(iv) Both parties agree to comply and file jointly for a mutual divorce without any undue influence, bribe or fraud
Things to Consider for a Mutual Divorce
- Need for alimony, and amount of alimony to be paid
- Child custody matters
- Maintenance of shared properties
- Splitting of properties and assets the couple own
What are the different laws regarding Divorce in India?
- For Hindus, Jains, Buddhists, and Sikhs – Hindu Marriage Act,1955
- Christians- The Indian Christian Marriage Act,1872/ Indian Divorce Act-1869
- Muslims – Personnel laws of Divorce/ Dissolution of Marriage Act,1939/ The Muslim Women (Protection of Rights on Divorce) Act,1986
- Parsis – The Parsi Marriage/ Divorce Act-1936
- Inter-religion or Inter-caste marriages – Special Marriage Act, 1954.
What is the Mutual Divorce Procedure in India?
Step 1: Filing a Divorce Petition
A mutual divorce procedure begins with the filing of a divorce petition, which may be filed at any of the following places;
- Court where the couple last lived
- Court where the couple’s marriage was solemnized
- The court in the area where the wife currently resides
The divorce petition must be filed jointly by the concerned parties, and the notice is served to the family court by both parties. The grounds for divorce is that the spouses feel they cannot live with each other anymore, and hence, have agreed mutually to dissolve their marriage. Another common ground used to get a mutual divorce is that due to unavoidable differences, the couple has been living separately for over a year. The joint petition must be signed by both parties involved.
Step 2: Court hearing and inspection
After this, both the parties will have to appear in the family court, with their respective lawyers.
The court will go over the petition and all the supporting documents presented as proof before the court. It can also try to bring reconciliation, and if this is not possible, the mutual divorce procedure continues.
Step 3: Statement Records
After scrutinizing the petition, if the court passes an order to record the party’s statements on oath.
Step 4: First Motion
After recording their statements, the court passes the first motion. Following this, the couple has to wait for 6 months before they file the second motion. However, the second motion must be submitted at least before 18 months after passing the first motion.
Step 5: Second Motion and Final Hearing
Once they decide to file the second motion, they can go ahead with the final hearing before the court. The final hearing includes both parties stating their case, and the court recording their statements on oath in the family court. Also, recently, the SC finds that the 6-months interim period can avoid if the court wishes it to be. Courts do so if they feel both parties are sure about the divorce, and also if there are no issues related to alimony, child custody, or property.
Step 6: Divorce Decree
Once the couple state that they do not have any differences in matters concerning alimony, child custody, or sharing of property, the mutual divorce procedure reaches the final stage. Therefore, the couple must reach an agreement for the court to take a final decision. With the court’s satisfaction, it passes a decree of divorce, which declares that the marriage is dissolved, and this makes the divorce final.