Introduction
Marriage is a sacred alliance not just between two individuals but between two families. However, sometimes after marrying you feel that you are not compatible with your spouse. Therefore, a person can opt for divorce if he/she wants to end a marriage. The laws related to divorce are as important as any other law. We see the numbers of marriages are increasing very rapidly. Teenagers do decide marriage in the heat of the moment even when they are unable to take care of themselves. The Hindu Marriage Act, 1955 describes the various provisions of the Marriage and Divorce. As per the Act, divorce can be of two types:
Divorce by mutual consent is a relatively easier and quicker process because it happens by agreeing without getting into a legal conflict rather than fighting a case.
Contested Divorce takes place when one spouse files for the divorce petition without the consent of the other spouse.
As per the Act, the term Hindu includes Buddhists, Janis, and Sikhs also. This act will also apply to any person domiciled in the territories under the Act but who is not a Christian, Muslim, Parsi, and Jew by religion.
Divorce by Mutual Consent
If both parties are willing to take the divorce, then the best option is to go for divorce through mutual consent. The process of divorce becomes a lot simpler when it is done through the consent of the parties and with the help of the divorce lawyer because:
- The cost of litigation, lawyer’s fee is nominal as compared to the process of a contested divorce.
- Issues like child custody, interim maintenance, and division of assets are decided in advance, therefore, reducing the time and legal cost.
- The divorce by mutual consent includes no arguments. Therefore, no quarrels in public.
- It helps in maintaining a healthy relationship with the spouse and the children hence, avoiding the negativity from life.
Requirements to be complied with for a Mutual Divorce
There are some conditions that are required to be fulfilled by the parties. These are:
- Before filing the petition, the parties should be living separately for a minimum of one year. Living separately here denotes that they must be not living as husband and wife. It is not necessary that they must be living in different houses to prove ‘living separately’. Not living as husband and wife includes that they have no desire to perform marital obligations. The parties may live under the same roof and yet they may not be living as husband and wife.
- The Act does not mention the intent of the parties for living separately; therefore the parties must have lived separately either through mutual consent or by force of circumstances and no adjustment is possible between them.
- Free consent by both parties for the dissolution of marriage is necessary. As per Section 23(1)(bb) of the Hindu Marriage Act, 1955, the Court should satisfy itself that the consent of divorce obtained for mutual divorce should be obtained freely and not through fraud, force, or undue influence. An appeal against the decree of divorce is allowed as there can be situations where even the Court fails to ensure that consent given for divorce is not free.
Jurisdiction
The jurisdiction of the Court depends upon the following:
- Where couple seeking divorce last lived.
- Where marriage was solemnized.
- Where the wife is residing as of present.
Procedure for Filing of Mutual Consent
1.Filing a Joint Petition
The first step is to file a joint petition in the respective family Court which needs to be signed by both parties. The petition will contain a joint statement stating that the parties no longer want to stay together and should be granted a divorce.
2. The appearance of both the parties
The second step includes the appearance of both the parties on the date fixed in the Court.
3. Scrutiny of the petition by the Court
Thereafter, the Court reviews the petition and the documents filed by the parties. If the Court is satisfied, it orders for the recording of statements of the parties on oath. As the marriage is sanctified with the blessings of God, therefore before proceeding to the divorce, the Court tries to reconcile the matters through Alternative Dispute Resolutions. If there is a failure to reconcile the parties, the matter proceeds with divorce.
4. Recording of statement and passing of the orders
The statement of the parties is recorded and then the order on the first motion is passed by the Court giving 6 months. After the gap of 6 months but before the completion of 18 months, the parties are required to file the second motion for the final hearing. If the second motion is not made within 18 months, then the court will not pass the decree of the divorce. Between this period the parties can withdraw the case if they want to. If either of the parties withdraws from the case, and the opposite party does not agree on the withdrawal then the divorce of mutual consent will become the contested divorce. In a recent judgment, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court. Consult the best lawyer in Gurgaon for your queries related to mutual divorce.
Documents/Information required for Mutual Consent
The following documents would be required for a divorce by mutual consent:
- Address proof of husband
- Address proof of wife
- Details of professions and present earnings of husband and wife
- Certificate of Marriage
- Family background information
- Photographs of marriage between husband and wife
- 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
- Details of property and assets of the parties
- Certain other documents may also be required, depending upon the facts and circumstances of the particular case.
Read more:
- Matrimonial Issues & Best Divorce lawyer in Gurgaon