Divorce by Mutual Consent in India

Introduction

Divorce by mutual consent is a relatively amicable way to end a marriage, allowing both parties to agree on the terms of their separation without lengthy litigation. People in today’s world want to get married, but they have their own set of requirements. If those requirements aren’t met, they are willing to end the marriage for their own sake, without social stigma. In India, this process is governed by the provisions of the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and the Divorce Act, 1869, depending on the religion and personal laws applicable. In this article, we will explore how to obtain a divorce by mutual consent in India, including what it entails, potential challenges, timeframes, and withdrawal possibilities.

Divorce by Mutual Consent

Divorce by mutual consent is a legal process where both spouses agree to dissolve their marriage without contesting it. This type of divorce is sought when both parties mutually decide that their marriage is irretrievably broken and they wish to part ways amicably. A divorce by consent is essentially one in which both the husband and the wife agree to an amicable split. Both the husband and the wife must consent to the mutual divorce and accept all of the terms and circumstances, including any child custody or maintenance and alimony. The key elements include mutual agreement, joint petition, and agreement on terms.

1. Both spouses must agree on the dissolution of marriage and all related issues such as alimony, child custody, and division of property.

2. A joint petition is filed in the Family Court by both parties.
3. An agreement must be reached on all terms related to the divorce.

How to Get a Divorce with Mutual Consent in India

Divorce by mutual consent is a legal method for dissolving a marriage amicably when both parties agree to end their relationship. In India, this process can be pursued under different personal laws, such as the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, or the Divorce Act, 1869. Here’s a step-by-step guide to navigating this process effectively:

Eligibility Criteria

Before initiating a mutual consent divorce, ensure that you meet the following criteria:

1. Mutual Agreement: Both parties must agree to the divorce and all related terms, including alimony, child custody, and property division.

2. Living Separately: Under most personal laws, the couple must have been living separately for at least one year before filing for divorce.
3. Irretrievable Breakdown: The marriage should be considered irretrievably broken down, with no possibility of reconciliation.

Drafting a Divorce Agreement

Prepare a comprehensive agreement that outlines the terms of the divorce, including custody of Children (Agreement on physical and legal custody of children, including visitation rights), Alimony (Terms of financial support or alimony, if applicable), Division of Property (Distribution of marital assets and liabilities), and Other Terms relevant to your situation. Both parties should sign this agreement, and it must be attached to the divorce petition.

Filing the Joint Petition

1. File a petition in the Family Court under the Hindu Marriage Act if both parties are Hindus.

2. If the marriage was conducted under the Special Marriage Act, file the petition in the Family Court.
3. For Christian couples, the petition is filed in the District Court under the Divorce Act.

Procedure

The process of mutual divorce in India can be categorized briefly in the following steps.

1. Draft a joint petition for divorce, including the signed agreement and required documents.

2. Submit Documents which means attach proof of marriage, proof of separation (such as affidavits or rent agreements), and any other necessary documents. The documents required include: Marriage Certificate, identity proof of both husband and wife, address proof of both husband and wife, Marriage invitation card, 4 photographs of marriage, passport-size pictures of both husband and wife (two each), details of property and assets owned by the parties, income tax statement of last 3 years, proof of not living together for not less than 1 year, and proof to support failed attempts of reconciliation.
3. Pay the applicable court fees.

Court Proceedings

1. In the Initial hearing, both parties must appear in court and the court will review the petition and the agreement. Further, the court typically mandates a cooling-off period of 6 months from the date of filing. This period allows the parties to reconsider their decision.

2. In the Second Motion, after the cooling-off period, both parties must appear again to reaffirm their decision to proceed with the divorce. The court will then conduct a final hearing to ensure all legal requirements are met and the agreement is fair and just.
3. The last one is the Final Decree, if the court is satisfied with the terms and the mutual consent, it will issue a final decree of divorce. One can obtain a certified copy of the divorce decree for legal purposes and future reference.

Minimum Time for Mutual Divorce in India

The time frame for obtaining a divorce by mutual consent in India can vary depending on the specific court and jurisdiction. 

1. Initial Petition: After filing the joint petition for mutual divorce, the court typically requires a minimum period of 6 months from the date of filing. This waiting period allows for a cooling-off period during which the parties can reconsider their decision.

2. Second Motion: After the initial six-month period, both parties need to appear in court for the second motion, where they reaffirm their decision to divorce.
3. Final Decree: If the court is satisfied that the parties have followed all legal requirements and that the mutual consent is genuine, it will grant a divorce decree.

In total, the process generally takes about 6 to 18 months, depending on the efficiency of the court and the specific circumstances of the case.

Can Mutual Consent Divorce be Challenged?

In general, a divorce by mutual consent is less likely to be contested because it is based on an agreement between both parties. However, there are certain circumstances where it can be challenged which include, fraud, coercion, and non-compliance with legal formalities which are discussed as follows:

1. If one party can prove that the consent was obtained through fraud or misrepresentation, they can challenge the divorce.

2. If a party can demonstrate that their consent was given under duress or coercion, the divorce can be contested.
3. Failure to adhere to legal procedures or documentation can lead to challenges.

If a challenge is raised, it could delay the process and require additional court hearings to resolve the issues.

Can Mutual Consent Divorce be Withdrawn?

The answer to this question is ‘Yes’. This means a mutual consent divorce can be withdrawn. If either party wishes to withdraw the petition, they can do so at any time before the court grants the final decree. To withdraw, the parties need to file a written application in court, stating their intention to withdraw the divorce petition. The court will then dismiss the case, and the marriage will remain intact.

Divorce by mutual consent offers a streamlined and less contentious route for couples wishing to end their marriage amicably. Understanding the legal framework, potential challenges, timeframes, and withdrawal options can help make the process smoother and more manageable. It’s advisable to consult with a qualified family law attorney to guide you through the nuances of the procedure and ensure that your interests are adequately represented.

– Laksh (Trainee)