Requirements of filing 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, the 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.
- 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 fourth 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 the date 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 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.