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Mutual Consent Divorce is the Simplest Way to Obtain a Divorce decree in India. Mutual Consent Divorce is Granted by The family Court when Both parties to marriage i.e. Husband and Wife Mutually agree to Divorce.
Advantages of Mutual Divorce
- No need to give reasoning for Divorce , No washing dirty linen in Public, Your privacy is well Guarded.
- This form of Divorce is Quick and Cost effective and,
- If all papers submitted are satisfactory the hon’ble court Grants it Without Delay.
- Peaceful way of Obtaining Divorce.
Laws Governing Mutual Divorce
In India we have separate personal laws depending upon which Religion One belongs, therefore your religion determines which law shall govern your marriage and Divorce Procedure.
- The Hindu Marriage Act, 1955 applies to Those belonging to Hindu, Sikh, Buddhists, and Jainism Religion.
- Special Marriage Act: applies to Those Couples who have opted for Court marriage or Couples belonging from Different Religions.
- Divorce Act, 1869: Applies for those belonging from the Christian Religion.
- The Muslim Marriage Act, 1939 Governs the laws Related to Marriage and Divorce for Muslim Couples.
Section of Hindu Marriage Act, 1955 dealing with mutual divorce
Section 13B of The Act has given both husband and wife a right to get their marriage dissolved by Mutual Consent Divorce.
13-B. Divorce by mutual consent
(1) Subject to the provisions of this Act 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, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, 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.
(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised 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 the decree.
Special Marriage Act
Section 28 of the Special Marriage Act, 1954 provides for Divorce by mutual consent for those who have registered their Marriage under Special Marriage Act. Special Marriage Act applies to Inter-Religion Marriages and Court Marriage.
Divorce Act, 1869
Those married Under Christian Laws can Obtain a mutual consent divorce under Section 10A of the Divorce Act, 1869
What are the Advantages of Filing Mutual Divorce
- Since Divorce By Mutual consent is the fastest and simplest way to obtain Dovorce therefore it saves time, money and energy.
- Unnecessary quarrel amongst Couple is avoided.
- Privacy is safeguarded by the Couple.
Essential Requirements For Mutual Divorce are as follows
- Husband and Wife have to be living Separately For One year.In the case of Christians Two Years separation is Prescribed.
- This separation means no Congenial Relationship for the prescribed period; and;
- Husband and wife mutually agreed to the desire to dissolve their marriage.
To File for mutual Divorce The Couple have to Mutually agree upon certain facts Before Filing the petition they are:
- Custody of child;
- Alimony (lump sum maintenance to be decided between parties;
- Return of items i.e. dowry, streedhan, etc;
- Litigation expenses.
Facts To Know before filing Mutual Consent Divorce
- One year separation period Must before Filing The petition and two years in case of Christians.
- The couple can Submit a Joint petition For mutual Divorce in the family Court or District Court where:
- Where they Last Resided.
- Where the marriage took Place.
- Where the Wife Resides.
- The entire Process takes 6 Months.
- Couples can extend the period of second motion till upto 18 months.
- This period can be Shortened to within 3 months by Filing a separate application to waive off Cooling period of Six months. (This entire Depends on the Discretionary powers of the Judge)
Documents Required to File a Mutual Consent Divorce
- Proof of Address of Both parties i.e. Aadhaar Card/Passport/Electricity Bill/Ration Card (either one of them).
- Marriage Certificate.
- Wedding Card.
- Passport 4 Passport size Photographs.
This is an exhaustive list and depends on the grounds of filing the divorce petition.
Procedure to File Mutual Consent Divorce Petition
Petition to file for Mutual divorce
The first step is to File a Joint petition in the family Court/District Court in the Correct Jurisdiction mentioned in the Graph given above. The petition should contain that both are unable to live together and have mutually agreed to dissolve the marriage and that they have been living separately for a period of one year or more. The petition is to be duly signed by Both parties.
After the petition is filed and accepted by the Court a date for First motion is give (in some places same day of Filing)
Respective lawyer will present the Mutual petition before the Hon’ble judge.
After Critically examining the documents and the petition presented in the court. The Hon’ble judge may upon being satisfied direct the court to record the statements of parties, then the parties have to both sign and give a thumb impression in the petition (party’s statements to be recorded on oath) and submit it before the Judge. The Court will then grant the first motion.
After the Completion of First motion a Cooling period of six months is given, before the Second motion can be filed. This period is given to the couple to reconsider their decision. If they agree to cohabit, give each other a chance, the couple may appeal before the court to cancel the mutual Divorce petition, which the court will happily do so.
After six months of the first motion or at the end of the reconcile period/cooling off period If both parties still don’t agree to live together and desires to go for a second motion. they may file for a second motion between a time frame of six to eighteen Months.
The second Motion also known as Final hearing of a Mutual Consent Divorce includes parties having to appear and record their statements before the Family Court.
Judge Grants Decree of Divorce
Finally before Granting Divorce Decree the hon’ble court will satisfy itself that both parties have settled matters related to alimony, custody of a child, maintenance, property, and such other things amicably and that there remains no disagreements between the parties. the court will finally grant a Divorce Decree.
Mutual Divorce is Non-Appealable
Once the Court Grants a Divorce Decree in Mutual Consent it cannot be Challenged nor can you file for appeal in Higher Court Challenging the Decree at a later date, It is the Final Order and nothing can change it. This is Because Mutual Divorce is a Consenting Decree of Divorce.