“I’m so miserable without you, it’s almost like having you here.” -Unknown
Marriages are hard. Divorces…even harder. Nobody enters a marriage thinking about a divorce in the end. If some are unable to cope with the harsh realities of marriage, the only viable option in front of them is to approach the Court and seek legal separation by way of mutual consent divorce.
The most common question I get asked from those thinking about divorce is:
“What is the exact procedure for mutual consent divorce in India?”
I got so tired of explaining the same thing to so many people, I thought I might as well write a brief articles about it over here. This article explains the procedure in brief for obtaining mutual consent divorce as per Hindu Marriage Act. In the near future, I would also be writing an article about the procedure for obtaining a contested divorce as per Hindu Marriage Act.
So from where does mutual consent divorce begin?
Well, it all begins at your home. Yes, at your home and not in a Court.
Opting for a mutual consent divorce is a completely voluntary by both the parties.
There may be numerous reasons due to which a couple may decide to part ways and legally split from each other. However, in a mutual consent divorce, the reasons for obtaining divorce are irrelevant, and the important thing is that the decision for divorce has been taken jointly by both the parties with mutual understanding and agreement.
Marriage between two Hindus is governed by the Hindu Marriage Act 1955, whether the said marriage was officially registered by the couple or not.
Section 13-B of the Hindu Marriage Act provides for divorce by way of mutual consent of the parties. Before moving further, let’s take a look at Section 13-B below:
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 solemnised 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 solemnised 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.
Interestingly, the only requirement for applying for divorce by mutual consent is that both the parties must have been living separately for a period of 1 year or more, and that presently they are not living together, and that they have mutually agreed to end their marriage.
As already stated above, a couple is not under any legal obligation to disclose or reveal the reasons behind the divorce before the Court.
Applying for mutual consent divorce:
Once the above requirements are met, a couple can consult a divorce lawyer of their choice and begin the process for their legally separation by way of divorce.
Since the divorce proceedings would be initiated by mutual consent of both the parties, therefore a single divorce lawyer can represent both the parties before the Court.
A mutual consent divorce has been divided into two parts, or two ‘motions’. The 1st motion and the 2nd motion.
A joint Petition for 1st motion under section 13-B(1) of the Hindu Marriage Act would be prepared by the divorce lawyer. Requisite signatures of both the parties on the Petition, Affidavits, Vakalatnama, etc would be taken in the presence of an Oath Commissioner or duly authorized Notary.
Subsequent to the completion of all the formalities by the divorce lawyer, the Petition would be filed and listed for hearing before the Court. The date of hearing varies from one Court to another as per the workload of that Court. On an average, once the Petition is filed, it is generally listed for hearing after 2-3 weeks from the date of its filing.
On the date of hearing, both the parties along with their lawyer, are required to appear before the Court. The Court will talk to both the parties independently and try to explore any possibility of a settlement between them.
In case the Court is unable to settle the disputes and differences between the parties, it will move ahead with the mutual consent divorce proceedings.
Statements of both the parties would be recorded before the Court to the effect that they have moved the mutual consent divorce petition out of their own free will, and without any force or undue influence from any person. Both the parties would also be required to sign their sworn statements.
Subsequent to the satisfaction of the Court regarding the above, an appropriate order would be passed by the Court, and the 1st motion of the mutual consent divorce proceedings would come to an end.
After a period of 6 months, which is also termed as the ‘cooling off period’, a fresh Petition for 2nd motion for the mutual consent divorce as contemplated under Section 13-B(2) of the Hindu Marriage Act would have to be prepared and filed by the divorce lawyer.
The entire process and procedure for the 2nd motion would be exactly the same as it was for the 1st motion.
After the culmination of the 2nd motion proceedings, the mutual consent divorce between the parties would be final. Both the parties shall be entitled to a free copy of the Decree of Divorce from Court.
As already stated in the beginning, the above is only a brief explanation of the procedure and proceedings for obtaining a mutual consent divorce in India. There are a lot of other formalities and complexities attached to the same, which vary from one case to another and from one Court to another.
- Disclaimer: This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
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