What is Divorce by mutual consent?
Divorce By Mutual Consent is as the name suggests is when both parties ie husband and wife come to a mutual understanding that the marriage be dissolved amicably.
How does it work:
In all there are two court appearances in a mutual divorce
First A joint petition signed by both parties is filed in court .
Secondly In the first motion statement of both parties are recorded and then signed on paper before the Hon’ble Court.
Thirdly The 6 month period is given for reconciliation, (the hon’ble court gives a chance to the couple to change their mind)
Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don’t agree to come together. Then the parties may appear for the second motion for the final hearing.
Finally Divorce decree will be granted as the Hon’ble Court may deem fit.
Mutual Consent Divorce between Hindu Couple
Mutual Consent Divorce between Hindu Couple is governed by The Hindu Marriage Act, 1955, under Section l3B.
Which states that.- A petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.
Mutual Consent Divorce in case of Court Marriage
Mutual Consent Divorce in case of Court marriage is governed by The Special Marriage Act, 1954 under Section 28.
Which states that.- A petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to it in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
Mutual Consent Divorce in case of Christian Couple
Mutual Consent Divorce in case of Christian Couple is governed by The Divorce Act, 1869, under Section lOA.
Which states that.- A petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.
There are three other requirements for Mutual Consent Divorce under section 13(B) as follows:
1) The couple have been living separately for a period of one year or more
2) The couple not been able to live together and
3) The couple mutually agreed that the marriage be dissolved.
As par sub-section 2, the parties are required to make joint motion not earlier six months and not later than 18 months after the said date. This motion empowers the court to satisfy itself regarding the genuineness of the averments in the petition and also to verify whether consent was not obtained by fraud and undue pressure. The court may make such an inquiry including the hearing or examination of parties for the purpose of satisfying itself
Who will file and appear for you in court?
Choudhury’s law office will present your Divorce petition before the Hon’ble court.
Choudhury’s law office is one of Delhi’s oldest law firm. Its a Fourth generation law firm with tremendous reputation on family law matters (marriage, divorce, maintenance, child custody, 498a, domestic violence, Sexual harassment etc). Servicing since pre independence era.
Your divorce will be personally handled by one of our reputed and well experienced lawyer.
The firm holds the reputation of providing quick and hassle free mutual divorce
|Here are the list facts to be mutually agreed upon in the petition for Divorce by Mutual Consent:
Firstly: Custody of child;
Secondly: Alimony (lump sum maintenance to be decided between parties);
Thirdly: Returns of items (dowry, streedhan, etc); and
Fourthly: Litigation expenses.The mutual consent divorce petition should also contain a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce.The court will pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
If the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent.
In a mutual consent divorce petition, the marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, that means Both parties have to agree to Divorce.
What does Divorce by Mutual Consent Mean?
Divorce by Mutual Consent means when both Husband and wife has agreed amicably amongst themselves that they cannot live together anymore and that the best solution is to Divorce, without putting forth any allegations against each other, in the court of law, than such a Divorce petition presented jointly before the honourably court, is known as mutual consent Divorce, it is the quickest form of divorce in India.
A. Formalities to be complied with
Under this section a decree for dissolution of marriage solemnized under this Act can be passed by a District Court on compliance with the following formalities:
(a) A petition is to be presented jointly by the parties to the marriage.
(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.
But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.
(c) The parties have failed for any reason whatsoever to live together. In other’ words, no reconciliation or adjustment is possible between them.
(d) The parties have freely consented to the agreement of dissolution of marriage.
(e) The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred. But in Sureshta Devi v Om Prakash it has been held that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.
(f) The court must be satisfied as to the averments in the petition after making inquiry and after hearing the parties which are initiated by a joint motion of the expiry of six months from presentation of the petition. The expression “after hearing the parties” appearing in sub-section (2) of section 28 of the Act does not require the presence of the parties before the court. Affidavit-evidence is sufficient for this purpose by virtue of section 40 of the Act which attracts the Code of Civil Procedure 1908 and which provides in Order 19 for proof of any point by affidavits.
B. Appeal and revision.
The maintainability of appeal though open to question, order is open to revision either under s.115 of the Code of Civil Procedure or under Art. 227
of the Constitution of India.
C. Ground of divorce by mutual consent
The ground of divorce by mutual consent is to be found in s. 28 of the Special Marriage Act 1954, and in s. 13B of the HMA. The Hon’ble court cannot read that ground under s. 10 of the Divorce Act 1869, by adopting a policy of “social engineering”.
D. Reconciliation necessary
Even if dissolution of marriage by mutual consent is sought by a joint petition of the husband and the wife still it is incumbent on the court to comply with the mandatory provisions of s. 34(2) of the Act to make attempt for reconciliation between the parties.
Can Mutual Consent be Withdrawal
Before a decree for mutual consent is passed, the question arises whether the party can withdraw its consent or not. At times, the question has also come before the Court and there was a conflict of opinions on the point whether the parties to divorce can withdraw its consent unilaterally. The Bombay High Court in Jayashree Ramesh Londhe v. Ramesh Bikaje Londhe. expressed the view that crucial time for the consent for divorce under section 13B was the time when the petition was filed.
If the consent was voluntarily given, it would not be possible for any party to nullify petition by withdrawing the consent. The Court took the support from Order 22, rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs to the suits. The similar view was adopted by High Court of Delhi in Chander Kanta v. Hans Kumar. and Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta.
To learn more about family laws here are a list of articles:
Preeti Singh v Sandeep Singh – Supreme Court Guidelines on Mutual Consent Divorce
Divorce: To get a judgment of divorce, you have to make arrangements for your property, your children, and support (if any). If you have a high degree of conflict, it is also about keeping the peace and protecting you, your children and your property.Living Separately 13B:
The period of one year living separately is sine qua non to the filing of the petition under section 13B and as such, its waiver would be impermissible as per settled corner of interpretation.Restitution of Conjugal Rights: Section 1(1) of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights
Recognition of Equality Marriage: Marriage is an eternal bond, the essence of family. In most parts of the world, the idea of marriage is confined strictly to union of two biologically different sexes, one man and one woman, the basic formula for propagating the species
Family Courts in India: There are also cases of misuse of provisions like Section 498A of the Indian Penal Code, Protection of Women from Domestic Violence Act, Section 125 Criminal Procedure Code, Child Custody laws to name a few
Divorce under Muslim Law: A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this done by talaaq.
Divorce by mutual consent: A consent decree per se in matrimonial matter is not collusive. As would be evident from the legislative intent of s. 13B of the Act
Mediation In Divorce: With an alarming increase in the number of couples heading for divorce in India, judges have now stood up to save the sanctity of marriage
While referring section 28 of Special Marriage Act, the view that legislative intent was expeditious disposal of divorce by mutual consent. It also laid down certain guidelines that consent should not be under coercion/intimidation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent. The continuance of such marriage is bound to cause undue hardship to the spouses.
It also laid down that relevant consideration while granting the exemption from passage of one year before filing a petition for divorce by mutual consent are namely:-
(a) the maturity and the comprehension of the spouses;
(b) absence of coercion/intimidation/undue influence;
(c) the duration of the marriage sought to be dissolved;
(d) absence of any possibility of reconciliation;
(e) lack of frivolity;
(f) lack of misrepresentation or concealment;
(g) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties.
This case shows that the Hon’ble High Court waived the period of one year separation on account of exceptional hardship being shown by the parties.
The reasons which weighed with the court while waiving the period of one year was its having made reference to the Statement of Objects and Reasons while making amendment to section 14 of the Hindu Marriage Act in the year 1996 on the parity with section 28 of the Special Marriage Act as expeditious disposal of divorce by mutual consent. However, with great respect it is noted that the period of one year is one of the condition for moving application for mutual consent.