Introduction
Welcome to the official blog of the Law Offices of Kr. Vivek Tanwar Advocate and Associates, where we are dedicated to providing litigation support services for matters related to Mutual Consent Divorce. In today’s blog post, we aim to shed light on the prevailing issues surrounding Mutual Consent Divorce, the legal framework in place for their protection, and the steps we can take as a society to combat these acts. Join us as we explore this critical subject and empower you with the knowledge to protect your rights and safety.
In recent years, the concept of divorce has evolved significantly in India, and mutual consent divorce has emerged as a progressive and amicable way for couples to dissolve their marriages. Under Hindu law, which governs marriages among Hindus, Buddhists, Sikhs, and Jains, mutual consent divorce provides an alternative to the traditional fault-based divorce system. This legal provision allows couples to part ways with mutual understanding and cooperation, reducing the emotional turmoil and acrimony associated with conventional divorce proceedings.
Understanding Mutual Consent Divorce
Mutual consent divorce is enshrined under Section 13B of the Hindu Marriage Act, 1955. According to this provision, a husband and wife can jointly file a petition for divorce before the appropriate family court, stating that they have been living separately for a specified period, typically one year or more. They must also confirm that they have mutually agreed to dissolve their marriage due to irretrievable breakdowns and that they have settled all issues relating to alimony, child custody, and division of assets and liabilities.
The judiciary has divergent opinions regarding the waiting period specified in Section 13B of the law. There have been conflicts over whether this period should be considered mandatory or merely a directory. For instance, in the case of Gandhi Venkata Chitti Abbai v. Unknown (1988), the Allahabad High Court ruled that the waiting period was mandatory. However, in the case of Dinesh Kumar Shukla v. Neeta (2005), the Madhya Pradesh High Court held that the waiting period is a directory and can be shortened to less than six months if the circumstances warrant it. Resolving this issue, the Apex Court, as discussed later in this article, stated that the waiting period can be waived if the circumstances necessitate it.
At the time of filing the divorce petition, both parties must mutually agree to it. However, one of the spouses can unilaterally withdraw their consent during the waiting period if they no longer desire a divorce. Importantly, the decree for divorce by mutual consent cannot be passed ex parte, meaning both parties must be present when the final decree is issued.
Essentials of Divorce by Mutual Consent
In order to seek a divorce by mutual consent, certain essentials must be met as prescribed by Section 13(B) of the Act:
- Living Separately: The spouses should be living separately for at least one year before filing the petition. This one-year period must be immediately prior to the filing of the petition. “Living separately” in this context does not strictly mean residing in different locations. Even if the parties are sharing the same house but not living as husband and wife, they are considered to be living separately, making them eligible for divorce by mutual consent.
The Hon’ble Supreme Court further clarified this aspect in the case of Sureshta Devi v. Om Prakash. The court emphasized that living separately does not require physical separation; the parties can be residing together but not as spouses, meeting the condition for mutual consent divorce.
Parties Have Not Been Able To Live Together
In the case of Pradeep Pant & anr v. Govt of NCT Delhi, in marriages where living together becomes untenable, divorce by mutual consent provides a way for couples to part amicably. Despite attempts at mediation and reconciliation, sometimes the parties find it impossible to continue their marriage. In such cases, they may jointly file for divorce by mutual consent. After filing, there is a waiting period of 6 to 18 months for introspection before the court grants the divorce decree.
They Have Reached A Mutual Agreement To Resolve Their Marriage
They have mutually decided to resolve their marriage. During the waiting period, reconciliation is possible, and they can make their relationship work. If they fail to file for the second motion within 18 months after the first motion, both parties are considered to have withdrawn their consent.
Process of Filing for Mutual Consent Divorce
The process of obtaining a mutual consent divorce in India involves the following key steps:
- Filing the Joint Petition: Both parties need to file a joint petition for divorce before the family court with jurisdiction over their marital residence.
- Cooling-Off Period: The court grants a six-month “cooling-off” period to the couple to reconsider their decision. During this period, the court encourages reconciliation, with the intent of avoiding impulsive or hasty divorce decisions.
- Second Motion: After the cooling-off period, both parties need to appear before the court for a second motion. They confirm their intention to proceed with the divorce, and if satisfied, the court grants the divorce decree.
Benefits of Mutual Consent Divorce
- Amicable Resolution: Mutual consent divorce fosters an amicable and cooperative approach to ending a marriage. Couples can part ways with dignity and respect, minimizing emotional stress and hostility.
- Confidentiality: The divorce proceedings remain confidential, as both parties are willing participants in the process. This helps maintain the privacy of personal and family matters.
- Time and Cost-Effective: Mutual consent divorce is generally quicker and more cost-effective than contested divorce cases that involve lengthy court battles.
- Child-Centric Approach: In cases involving children, couples can mutually agree on child custody, visitation, and financial support arrangements, prioritizing the best interests of the children.
Conclusion
Mutual consent divorce under Hindu law has emerged as a progressive legal provision, offering a humane and respectful way for couples to end their marriages. It allows couples to take control of their lives and make informed decisions, promoting an atmosphere of cooperation and understanding. By opting for mutual consent divorce, couples can find closure and move forward with their lives without unnecessary animosity. It is essential to consult with legal experts to ensure that all legal aspects are addressed and to facilitate a smooth and harmonious separation process.
We are a law firm in the name and style of Law Offices of Kr. Vivek Tanwar Advocate and Associates at Gurugram and Rewari. We are providing litigation support services for matters related to Mutual Consent Divorce Under Hindu Law.