What is the Process of Divorce by Mutual Consent in India?
Divorce is basically a legal dissolution of a marriage union. In India, there are different laws of divorce for different religions. Hindus(which includes Sikh, Jain, Budh) are governed by the Hindu Marriage Act,1955. Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872. Personnel laws of Divorce and the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986, all of these are applicable for Muslims. The Parsi Marriage & Divorce Act-1936 is for Parsi community. And there is also a secular law called Special Marriage Act,1954.
In Hindu law, marriage is regarded as a sacrament, a pious sanskara which is eternal and which cannot be dissolved. Prior to the Hindu Marriage Act 1955, divorce was not acknowledged as a means to put an end to a marriage, except where it was recognized by custom.
In general, there are two ways for obtaining a divorce:
1) Contested divorce– Where divorce is taken by one party who has made up his mind for divorce against the other spouse who does not approve of it.
2) Mutual divorce– Where both the parties mutually agree for divorce.
Process of Mutual Divorce in India:
Section13B of Hindu Marriage Act inserted in 1976, provides for divorce by mutual consent where both the spouses( whose marriage was solemnized either before or after the commencement of the Marriage Laws (Amendment) Act, 1976) agree amicably to part their ways legally.
Divorce by mutual consent is the easiest, fastest, stress-free and cheapest way of getting a divorce. It includes the following steps:
Step 1: Joint petition for Mutual divorce-
A joint petition consists of a statement by the parties that they have mutually agreed to split their ways and that they do not wish to stay together as a married couple.
Where to file the joint petition?
The petition is filed in the family court of the district
- where the couple last lived, or
- where the marriage was solemnized, or
- where the wife is residing at present.
The husband and wife should prove that:
- they have been living separately for a period of one year or more immediately preceding the date of the petition. Living separately means that the parties are unwilling to perform Marital obligations even if they are living under the same roof.
- they are unable to live together.
- both the spouses have mutually agreed for the dissolution of marriage.
The husband and wife should have consented mutually on two more aspects–
Firstly, upon the maintenance matter– The maintenance can be given either by the husband to the wife or vice-versa in lump-sum or it can be a periodical payment. There is no maximum or minimum amount of maintenance the parties should agree to. While deciding the amount of alimony or maintenance the court has to consider many factors such as the custody of the child, the financial position of the party, the status of parties, income, and property, number of persons to be maintained, etc.
Secondly, upon the custody of the children, if any- custody can be joint custody in which children have regular contact with both parents. Apart from physical custody, on matters such as education, religious belief, health, etc, the parents share legal custody of the child as well where they can make decisions about these life-impacting matters together. However, the child lives with the parent who has physical custody.
Step 2: Recording of Statements-
After the filing of the petition and on the date fixed by the court the husband and wife have to appear before the court. The court scrutinizes the petition and other relevant documents and on being satisfied it records the statement of the parties on oath. At this stage, the court should make every possible effort to save the marriage and if there are no chances of reconciliation the court should proceed further with the next step.
Step 3: Procedure followed in court-
After recording the statements the court passes an order on the first motion.
The court after passing the first motion adjourns the matter for a statutory period of 6 months(maximum 18 months)from the date of filing of the petition and before the expiry of 18 months, the parties can file second motion confirming their consent. If even by the end of reconciliation period there are no chances of reconciliation between the parties and the parties do not wish to live together as husband and wife, then the Spouses may appear for second motion. If there is no second motion by the parties the court will not proceed further.
Are the parties free to withdraw their consent?
Yes, the parties are free to withdraw their consent at any time before the passing of the decree by the court. The petition can be withdrawn even at the instance of one party within the period of six months. But this unilateral right of a party appears to be barred if the joint motion is taken after the expiry of six months but before eighteen months. For withdrawal, the party has to file an application before the court that they do not wish to seek divorce through mutual consent and the court will not proceed further with the petition.
The other party may then file for contested divorce which can be filed on grounds mentioned in Hindu Marriage Act such as cruelty, desertion, unsound mind, adultery, conversion, leprosy, venereal disease, renunciation of the world, etc.
Is the six months period mandatory?
The period of 6-18 months is given so that the parties can rethink their hasty decision. However, the court can waive off the statutory 6 months period. The said period is not mandatory. The court in its discretion depending upon the facts and circumstances of each case can waive off the said period. This means that the parties can request the court for waiving off the statutory period and to expedite the whole process and in such cases, the parties won’t have to wait for another six months.
Is the appearance of any or both parties necessary before the court?
Generally, the spouses are required to appear before the court during the first and second motion. However, the court may in certain circumstances allow camera proceedings.
Step 4: Decision of Court-
The court shall, on being satisfied with the arguments presented by the divorce attorney, that the averments made in the petition are true, he may then pass a decree that the marriage is dissolved. However, if the court fails to determine if the consent of the party was forced or even when the due inquiries fail to determine any fraud or coercion, the aggrieved party may file an appeal against the decree of the court.
What are the prerequisites like information/documents/materials required for Mutual Divorce?
Papers required to get a divorce
- Address proof of both parties
- Details of professions and present income of both parties
- Certificate of Marriage
- Family background information
- Proof of marriage- photographs, videos, and other documents.
- Evidence to prove that the husband and wife have been living separately for more than one year
- Evidence proving failed attempts of reconciliation
- Income tax statements
- The living standard of the claimant.
- Details of property and assets of both parties
- Other documents may also be required, depending upon the facts and circumstances of the particular case.
How much time does it take to get a decree of Divorce by Mutual Consent in India?
Divorce by mutual consent is considered the fastest way of getting Divorce and usually, it takes around 6 months – 2 years for completion of the whole process. However, the duration may vary according to the facts and circumstances of each case.
NRIs Mutual Divorce case
When an NRI couple wants to file for divorce, they have to file a divorce petition in the foreign country under the laws where the party currently resides. It is crucial that the judgment should be conclusive of section 13 of the Civil Procedure Code, 1908.
However, the court may permit camera proceedings in the case where the divorce petition is filed in India and one of the parties is staying abroad.