When Can A Mutual Consent Divorce Be Filed?

Table of Contents hide

1) Requirements-

2) Steps involved in filing a mutual consent divorce-

2.1) 1. Joint Petition to file for divorce.

2.2) 2. Appearance before the court and scrutiny of the petition

2.3) 3. Recording of statement on oath by Court’s order.

2.4) 4. Cooldown time and appearing for 2nd

2.5) 5. Appearing for 2nd motion

2.6) 6. Passing of the decree

3) Cost of obtaining a mutual consent divorce-

4) Conclusion

“Some people believe holding on and hanging in there are signs of strength. However, there are times when it takes much more strength to know when to let go and then do it.”[1] Ann Landers

It is said marriages are made in heaven. But sometimes heaven doesn’t choose a perfect partner in a first go. Heaven tricks you, challenges you and makes you work hard for the process of happiness in life. This process of hard work and sensitive progress can be considered as divorce. Every country in the world has different rules governing their divorce laws. But Being Indian citizens let us try to understand the intricacies of divorce procedure in India. Hindu marriage act of 1955 deals with the marriage and divorce procedures of Hindus, Buddhists and Jains.[2]Under this act one can get divorce by Mutual consent or contested divorce.[3]In this essay we will be looking at the different circumstances under which a person can file a petition for a mutual consent divorce, its procedure, time period and other regulations under this.

Section 13 of Hindu marriage of act 1955 lays down grounds for divorce. Mutual consent divorce can be filed under section 13(b)[4] Section- 28 of the Special Marriage Act, 1954 and Section- 10A of the Divorce Act, 1869, also cater to mutual consent divorce[5]. Before analysing the details of mutual consent- divorce it is important to mention there are different laws for different religion. Christians are governed by the Indian Divorce Act, 1869 and Christian Marriage act, 1872.[6]Muslims are protected under the Dissolution of Marriage Act,1939 and The Muslim Women (Protection of Rights on Divorce) Act,1986[7]. Like this there are different laws for different religions and everyone is protected by a similar but different set of rules and regulations.

Requirements-

Mutual consent divorce was brought by the Indian Parliament through the amendment of 1976.[8]The first important thing is parties have to wait at least one year after the marriage to apply mutual consent divorce.[9]There must be no coercion, fraud or undue influence between the spouses and there must free consent of the spouses. There should be no possibility of reconciliation between the spouses. These are the basic requirements to get a mutual consent divorce with both husband and wife willingly decide to break up.

Steps involved in filing a mutual consent divorce-

1. Joint Petition to file for divorce.

The first step in filing for mutual consent divorce is filing a joint petition by the party. In the petition, it has to be stated that they are not able to live together due to differences. It also has to be stated that they have mutually agreed to this diverse. With this information, the petition should be filed with the signature of both the parties.[10]

2. Appearance before the court and scrutiny of the petition

Once the petition is filed both the parties should appear before the court with their documents. The required documents for the procedure are as follows.[11]

Address proof of husband and wife.
Details of professions and current earnings of both the spouses.
Marriage Certificate
Information regarding family background.
Marriage Photographs
Evidence to prove that the husband and wife have been living separately for more than a year.
Evidence proving failed attempts at reconciliation.
Income tax statements.
Details of property and assets of the parties.
Other documents

After the scrutiny of documents and the once the court is satisfied that no reconciliation is the possible court will move on with the divorce.

3. Recording of statement on oath by Court’s order.

Once the court is satisfied with the scrutiny of the petition, it may pass orders for the recording of statements on oath.[12]

4. Cooldown time and appearing for 2nd

After the first motion generally, a cooling period of 6 months is given for couples to rethink the decision. This time can be used by couples to pull off the divorce agreements or sort out things like child custody, property division, annulment, maintenance matters etc. But recently supreme court in a case held that it is not necessary to wait till the end of the cooling period if the court feels that the reconciliation is impossible and also if they have completed all other legal procedures.[13]Generally 6 month cooling off period is followed, but this judgement from the Supreme court set a precedent to show that this could be skipped in urgent matters and unavoidable ones.

5. Appearing for 2nd motion

After 6 months if the parties have not reconciled or still want to have the divorce then the court will proceed with the 2nd motion. It is called a final hearing.[14]Here the parties have to appear in the court and make a joint recording. The 2nd motion has to be applied within 18 months from the petition date for divorce.[15]Even at the time of the 2nd motion party is free to withdraw. The withdrawal can any done anytime before the order of the decree.[16]

6. Passing of the decree

This is the final part of a mutual consent divorce. After the court is certain that there is no scope for any further negotiation Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage[17]. Once the decree of divorce is the passed the divorce becomes final.

Cost of obtaining a mutual consent divorce-

The court fee is generally around INR 15.[18] The bulk of the expenditure is the expense of a lawyer. Lawyer’s fee might vary from one lawyer to another, but the basic amount would be around INR 15000. It might go up to a lakh in case of any dispute of extended process. The advantage of mutual consent divorce is its fast-paced process and little dispute.

Conclusion

Mutual consent divorce is better than a contested divorce in many ways. But not always both husband and wife will be willing to carry on with a divorce due to many reasons. Mutual consent divorce is fast-paced and not complex. In a contested divorce personal -lives of the couples will come into picture during an investigation and might give rise to other cases such as domestic violence, dowry seeking etc. Overall divorce by mutual consent is the best and the simplest method to obtain a divorce in the Indian system.

[1] 40 inspirational divorce quotes that will make you feel less alone. (5th June 2020) https://sasforwomen.com/divorce-quotes-inspirational/

[2] All you need to know about the Hindu Marriage act of 1955. (5th June 202) https://www.taxmann.com/blogpost/2000000571/all-you-need-to-know-about-the-hindu-marriage-act-1955.aspx#:~:text=As%20per%20Section%202%20of,Hindus%20is%20a%20Hindu%20Marriage.

[3] Swathi Shalini, What is the divorce procedure and types of divorce types in India? (5th June) https://www.myadvo.in/blog/step-by-step-divorce-procedure-in-India/

[4] Hindu Marriage act 1955

[5]Divorce by mutual consent. (5th June 2020) http://www.helplinelaw.com/family-law/DIVORCEB/divorce-by-mutual-consent.html

[6]Vakil no 1, Divorce by mutual consent step by step procedure. (5th June 2020) https://www.vakilno1.com/legal-advice/divorce-mutual-consent-india-step-step-procedure.html (hereafter vakil no1)

[7] Vakil no 1 (5th June 2020)

[8]Mutual consent divorce procedure- A complete guide. (5th June) https://www.divorcelawyers.co.in/area-of-practice/mutual-consent-divorce-procedure-india-complete-guide/

[9]Riju Mehta, Divorce- costs, the document needed and steps involved. (5th June) https://economictimes.indiatimes.com/wealth/save/divorce-costs-documents-needed-and-steps-involved/articleshow/73608055.cms?from=mdr-

[10]Step by step procedure to file for a mutual divorce. (5th June 2020) https://www.indiatoday.in/information/story/stey-by-step-procedure-to-file-for-a-mutual-divorce-1534492-2019-05-27

[11]Riju Mehta. Divorce- costs, documents needed and steps involved. (6th June 2020) https://economictimes.indiatimes.com/wealth/save/divorce-costs-documents-needed-and-steps-involved/articleshow/73608055.cms#:~:text=In%20Mutual%20Consent%20divorce,passes%20order%20on%20First%20Motion. ( hereafter Mehta)

[12] Step by Step process for divorce with mutual consent. (6th June 2020) http://www.advocatebindu.com/step-by-step-process-for-divorce-with-mutual-consent/