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    Requirements of filling the mutual consent divorce in chandigarh or india

     

    If you are planning to get a divorce, mutual divorce should always be preferred to a contested divorce. Obtaining divorce through mutual consent is quite advantageous as it saves both time and money. The provision for dissolving marriage through mutual divorce in India is included in Section 13 B of the Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. Any marriage solemnized before and after the Marriage Laws (Amendment) Act, 1976 is entitled to this provision.

     

    How to start a divorce based on mutual consent?

     

    The provision for consensual divorce has been for estranged spouses under Sec. 13-B of The Hindu Marriage Act, Sec. 28 of The Special Marriage Act, and Sec.10-A of The Indian Divorce Act. The settled procedure is that for seeking a divorce by mutual consent the parties must file a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division.

    The petition which is also called the First Motion Petition for Mutual Consent Divorce should contain a joint statement by both partners present in Court. The two parties must convey that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court.

    There are a lot of conflicting issues that may come when the husband and wife are agreeing upon for a mutual consent divorce. For instance, child care, alimony to wife, return of dowry items, litigation expenses, etc. should be settled long before the actual filing for divorce by mutual consent to avoid any issues later on.

     

    Requirements/conditions of filling the mutual consent divorce

    • Firstly , Section 13-B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both  the  parties.
    • The second requirement, it is necessary that immediately preceding the presentation of the petition the parties must have been living separately for a period of one year or The expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living.  The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses   and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.

     

    • The third requirement is that  they  ‘have not been able to live together’  which              indicates  the  concept  of  broken down marriage   and it  would  not be  possible  to   reconcile themselves.

     

     

    • The forth requirement is that they have mutually agreed that the marriage  should be dissolved.

     

     What if one party does not consent?

     

    An analysis  of    Section   13-B   makes  it apparent  that the filing of the petition  under section 13-B(l)  with  mutual  consent  does  not authorize  the  Court to make a decree  for  divorce. The   parties are required  to make a joint  motion  under   sub-section (2)which should not be earlier than six months  after  thedate  of  presentation of  the petition and not later than 18  months  after  the  said date.  This motion enables the court to proceed with the case in  order to   satisfy   itself about  the   genuineness   of the averments   in the  petition and  also   to find out whether the consent  was  not obtained  by  force,   fraud or  undue  influence.  The  Court  may make  such   inquiry as it thinks fit including the hearing or examination  of the  parties   for   the   purpose   of     satisfying  itself whether  the  averments in the petition are  true.  If the Court is  satisfied  that the consent of   the    parties was   not  obtained  by force, fraud or undue  influence and  they  have mutually   agreed   that   the    marriage should be  dissolved, it must pass a decree of  divorce.

    A judgment for mutual divorce is passed out only if all the necessary agreements required for a mutual divorce in India are strictly maintained. The husband and the wife should come to terms of settlement regarding the following issues.

    • Custody of Child
    • Return of Dowry Articles / stridhan of Wife
    • Lump Sum Maintenance amount of Wife
    • Litigation Expenses

    For a mutual divorce in chandigarh or India, it’s always advisable to consult an experienced lawyer who will effectively guide you to get the divorce through a mutual agreement done between you and your spouse.

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