Today it is okay to walk away from a bad marriage and divorce isn’t a failure, but rather considered an opportunity to grow. However, people are still unsure regarding how the process of divorce works in India. So, here’s a look at the procedure for a mutual consent divorce in India.
What is a mutual consent divorce?
A mutual consent divorce is one in which both the parties, that is, the husband and wife agree to file for divorce. They cite irrevocable differences as the grounds for the separation and file a joint petition in the family court. Since the ending of a marriage can be difficult, it is better to look for ways to end things amicably and smoothly. A mutual consent divorce is the least traumatizing way to dissolve an unhappy marriage.
Benefits of a Mutual Consent Divorce
- Easier on the child
- Saves a lot of time, as it is a faster process
- Helps in saving a lot of money, in the form of lawyer fees
- Less traumatizing and emotionally draining
- Opportunity to split into amicable terms
What Indian Laws Concern Themselves with Mutual Divorce?
- Section- 13B of the Hindu Marriage Act, 1955
The parties must have lived separately for at least one year before applying under this Section.
- Section- 28 of the Special Marriage Act, 1954
- Section- 10A of the Divorce Act, 1869
- Christians – Indian Divorce Act, 1869
- Muslims – Divorce and Dissolution of Marriage Act, 1939 and Muslim Women (Protection of Rights on Divorce) Act, 1986.
- Inter-religion marriages – Special Marriage Act, 1954.
- Income Tax Returns from the past 3 years
- Details of present income via Salary slips
- Birth and family details
- Details of the assets
- Address proof of husband/wife
- Marriage certificate
- Four photographs of marriage
- Evidence proving spouses were living separately
- Evidence showing their failed attempts at reconciliation
What is the process for a mutual consent divorce in India?
- The first part of the process is to file a mutual or joint petition for divorce at the family court. The grounds for divorce can be irrevocable differences, wanting to lead two separate lives or the fact that you have been living separately for over a year anyway.
- Once that has been done, the Court will call you for a hearing. You must head to the Court with the joint petition, that both parties have signed and all supporting documents.
- After hearing both parties, the Court will investigate and verify the documents.
- If the Court is satisfied, it will pass the first motion.
- The couple must wait for at least six months and a maximum of 18 months before filing the second motion.
- The Court can waive off these 6 months if it wishes to do so, or if it is convinced that the interim period will not help the couple.
- At the final hearing, both parties will give their statements, and if the Court feels that all matters are settled, it will grant a divorce decree, which dissolves the marriage.
Things to Know Before Getting a Mutual Divorce
- The decision to dissolve must be taken by both parties without any bribery, fraud, or undue pressure from either side.
- A mutual divorce may be granted after 2 mandatory visits to the Family court.
- A court will issue a decree for divorce only after making sure that the couple has decided on issues such as alimony, child custody, and splitting of properties and assets jointly owned.
- In case the second motion is not filed within 18 months, the Court will cancel the petition.
- Either spouse can withdraw their consent whenever they deem necessary before the Court finally grants the decree of divorce. This is because the most important requirement to allow a mutual consent divorce is the consent of both parties.
- NRI couples must file for divorce in a foreign country where they reside, as per the laws there. However, the decree of that Court must match with the regulations in Section- 13 of the Civil Procedure Code, 1908.
Divorce by Mutual Consent – Latest Judgements
- A recent Supreme Court judgment stated that the interim period of 6 months may be avoided if the couple has genuinely resolved all their issues.
- The Rajasthan High Court, in the case of Suman v. Surendra Kumar, that the period of interregnum is provided to ensure that the couple gets enough time to analyze and reflect on their move. Additionally, such a period helps them think of all the possibilities and make an informed and well-thought-out decision.
- Sureshta Devi v. Om Prakash, led to the SC stating that living separately refers to not living the way a married couple does. The term has no relation to the location or method of stay of the couple, but rather how they live. It states that the parties have no desire for any marital obligations.
- Additionally, in the case Smruti Pahariya vs. Sanjay Pahariya, the SC stated that if one of the spouses is absent for a hearing, their absence cannot be taken as mutual consent. Further, before granting the divorce decree, the Court must satisfy that both parties consent to the mutual divorce.
- Hirabai Bharucha vs. Pirojshah Bharucha showed that the Court must try to sustain the marriage and work for reconciliation.