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Overview of Mutual Divorce

Divorce in India with mutual consent is an easy and less expensive process as compared to divorce without mutual consent. It is a process where the parties to marriage get separated in a legal manner. A mutual divorce takes place when both, husband and wife give mutual consent for separation after marriage of their own free will.

This type of divorce involves the consent of both parties to the marriage. It is a less traumatic process as both parties present their will for separation. It is an amicable way for the dissolution of marriage. It involves decisions such as alimony, child custody and property settlement. With the help of legal professionals, it is easier for the parties to prepare necessary papers, comply with all the required conditions, attend court hearings, and receiving of the decree of divorce. It helps both spouses to end their marriage in a dignified manner.

Advantages of Mutual Divorce

Applying for a mutual divorce helps parties to save a lot of time, money and unnecessary quarrels. It is a faster form and saves parties from bearing mental stress. It gives parties a mutual decision to consider things like maintenance, child custody and other related matters.

Provisions related to mutual divorce under various Acts

Due to the diversified nature of Indian culture, different religions have different laws related to marriage and divorce. 

  • For people belonging to the Hindu religion, Hindu marriage deals with provisions related to mutual divorce under Section 13B of the Hindu Marriage Act, 1955.
  • For people who are not governed under Hindu law, can file for divorce under Section 28 of The Special Marriage Act, 1954.
  • For people from Parsi religion, Section 32B of the Parsi Marriage and Divorce Act, 1936 governs mutual divorce between two parsi parties to a marriage and other Different laws have been enacted for people belonging to other religions such as Christians and Muslims, etc.
  • If the parties to marriage do not follow any specific religion, they can file a civil suit in a competent court of law for getting a mutual divorce.

Points to consider

  1. The custody of a child is an important aspect to decide.
  2. Alumni/Maintenance – A certain sum of the money has to be paid by one party in installments or in lump sum amount for the maintenance of the other party along with the maintenance of the child.
  3. Settlement of ownership of properties and assets between both parties to the marriage.

Who is eligible to get alimony?

As per the provision mentioned under Section 25 of the Hindu Marriage Act, a party to the marriage has to provide maintenance to the other in a lump sum or in installments mutually agreed between the parties. If both of the parties to the marriage are working and there is a substantial difference in income between the wife and the husband, then the wife will be entitled to alimony for maintaining the same living standard as her husband. If in case, the wife is not working, then the amount of alimony is decided after considering aspects such as educational qualification, age and her ability to earn. If in case, the husband is not working and is disabled, then the wife is under a responsibility to pay alimony to her husband.

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Conditions essential to file for mutual divorce under The Hindu Marriage Act, 1955

Section 13B of the Hindu Marriage Act, 1955 defines certain necessary conditions required for applying for mutual divorce. These are as follows:

  • Both parties to the marriage must agree for the dissolution of their marriage.
  • Both parties agree to file an application jointly for divorce with free consent.
  • Both parties must have lived separately for at least one year as per the provisions of the Act.
  • Both parties must agree that it is not possible for them to live together.

Necessary Papers required for mutual divorce

One of the important things required under a mutual divorce is the preparation of necessary papers in advance for filing before the court. Usually, the individuals opting for mutual divorce tend to be more prepared for the proceedings. The advanced preparation helps in a speedy process and avoidance of wastage of time.

The below-mentioned is the list of necessary papers required to file a petition for mutual divorce. It is always good to have a legal professional for receiving consultation for filing the petition and submission of necessary papers before the competent court.  

  • Marriage certificate
  • Four photographs of marriage
  • Address proof of husband
  • Address proof of wife
  • Income tax statement of income-earning party
  • Details of profession
  • Details of movable and immovable assets
  • Family details of both the parties
  • Proof that parties are living separately for a time span of one year

 Procedure for mutual divorce

The below-mentioned are the steps for getting a mutual divorce to the parties. These are as follows:

  • Filing of a joint petition

The first step for seeking a divorce is the filing a joint petition signed by both parties to a competent family court. The petition must state that the parties do not wish to continue their marriage for certain reasons and differences between them. The statement should also mention mutually agreed decisions with regards to custody of the child and settlement of assets and property.

  • Appearing in the court

After filing the joint petition, both parties have to appear before the court on the given date by the court. Both parties should appear along with their respective counsels.

  • Scrutiny of the petition by the court

After the above two steps have been performed, the court scrutinizes the submitted necessary papers and the petition. If the court finds the necessary paper and the conditions listed for divorce appropriate, then it will order for recording of the statement of parties under oath.

Under certain circumstances, the court even tries for reconciliation of marriage between the parties.

  • Recording the order and passing the statement

After the statements of both parties have been recorded, the court passes the first motion order. The court grants a period of 6 months to the parties before they can file for a second motion. It is necessary to file for 2nd motion within 18 months from the date of filing of the first motion.

  • Appearing for the second motion

After the time period of 6 months has lapsed, the parties are allowed to file for a second motion. The time period is provided to the parties so that they can try to reconcile their marriage if there are any possibilities to save the marriage.

  • The Decision of the Court

If the parties do not get successful in reconciling their marriage, the court gives its decision for dissolution of the marriage between the parties after the complete satisfaction that the consent from both the parties are free from any undue influence and is mutual. The court grants divorce by putting an end to the legal marriage of the parties.

Frequently Asked Questions

It means that both, husband and wife have mutually agreed with free consent to get their marriage dissolved.

The parties have to file for mutual divorce in a family court of the city:
  • Where both parties have lived together the last time, or
  • Where the marriage was solemnized.

From the date of filing till the passing of the final decree for divorce, it takes an average time from 6 months to 2 years depending upon the nature of the case. There is no set prescribed time limit as each case is different. With regards to mutual divorce, the time required for passing a divorce decree is less as compared to other divorces.

No, a notary to not allowed to grant a divorce decree in India. A divorce decree is considered valid after it has been passed by a competent family court having jurisdiction over the case.

Yes, a party to divorce can withdraw the petition during the time period of 6 months or time given to the parties between the passing of the first and second motion. The party willing to withdraw the petition must file an application to the court stating reasons for the withdrawal of the divorce petition. If the other party still wishes to seek a divorce, the party can file a contested divorce on various grounds such as cruelty, desertion, sexual intercourse with another person, bigamy, unsoundness of mind, etc.

A person has to get a divorce before re-marrying. A person who marries another person without getting a divorce is punishable under the law prevailing in India.

Yes, the presence of parties is necessary for obtaining a divorce decree in both, the first and second motions. The court passes a decree without the presence of parties where it is almost impossible for the parties to appear before the court.

The court is under an obligation to assess the joint petition for divorce and examine the parties carefully before passing a divorce decree. It is important for the court to satisfy itself that the consent of parties is free from any undue influence, fraud or coercion. If the court, after passing the decree finds out that the consent was not free, the decree cannot be regarded as a valid decree for divorce by mutual consent. The aggrieved party has the right to file an appeal to strike down the divorce decree if the consent was obtained by way of fraud or coercion.

The court has the authority to strike off the cooling period of 6 months if such a period is not required. The parties who have finally decided to dissolve the marriage can make a request to the court for making the divorce procedure fast. Thus, the parties will not be required to wait for 6 months.

The issue of maintenance is dealt by a mutual decision between the parties. Various factors such as the number of dependents, duration of the marriage, the health of spouse, working condition of a spouse, etc are considered before deciding the final amount. It is not necessary for one party to pay maintenance to the other in case of mutual agreement between the parties. There is no set amount by the court for payment of maintenance. It can be paid in monthly installments or as decided by the parties.

In the cases of mutual divorce, child custody is usually decided between the parties to divorce. The person having child custody is responsible to take care of and protect the child living with the person. The person with whom the child lives is responsible to manage the education, medical and other requirements of the child.

Mutual divorce is governed by the Hindu Marriage Act under Section 13-B.

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