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Divorce By Mutual Consent In India: An Introduction

The complete divorce procedure for ‘divorce by mutual consent in India’ can be filed if you and your spouse are facing struggles living together and have decided to separate from each other legally.

Divorce is a manner by which the marriage between two persons comes to an end which may be solemnified under different laws like Hindus which includes Sikhs, Jains, Buddhists are governed by the Hindu Marriage Act, 1955 while the Christians are governed by Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872.

You can file a petition for divorce by mutual consent format/forms before a court of law. And, if the other party is not agreeable to getting a divorce and you are only willing to get a divorce from your spouse then also you can file a divorce petition, this is called ‘Contested Divorce’.

Meaning of Mutual Divorce and Contested Divorce

The procedure for getting a divorce with mutual consent in India is less expensive and less stressful as compared to the procedure for a contested divorce in India. Here, is the simple meaning of divorce by mutual consent and contested divorce given below;

  • Divorce is a legal procedure used for the separation of spouses (husband and wife) after marriage. When the spouse is willing to separate from each other with their own after their marriage then this is called “Divorce by Mutual Consent” or “Mutual Divorce”.  Also, mutually both the husband and wife can apply for the divorce.

  • The contested divorce meaning means, when the petition is filed for divorce without consent or approval of either of the spouse (husband or wife), this is known as a “Contested Divorce” or “Divorce without Mutual Consent”.

Legal Provisions for Divorce by Mutual Consent: –

The husband and wife, both have given a right under the Hindu Marriage Act, 1955, to get a divorce by mutual consent as their marriage collapsed by the decree of divorce on the grounds which are specifically given under:

  1. Section 13 of the Hindu Marriage Act, 1955, and                   

  2. Section 28 of the Special Marriage Act, 1954, and                       

  3. Section 10A of the Divorce Act, 1869, and

  4. Section 32B for Parsi Marriage Act 1936, and

  5. Under the sections of the Christian and Muslim Marriage Act.

When One Can Apply for Divorce by Mutual Consent

Husband and wife both should be willing to get separated from each other is the first rule when it comes to a mutual consent divorce in India. Also, the following things one should be aware of before filing a divorce;

  1. The spouse has been living separately for one year or more.

  2. That they are unable (not willing) to live together under one roof.

  3. And that both husband and wife have mutually agreed that the marriage has totally collapsed among them.

Hence the marriage should be dissolved. Under any of these circumstances, a petition for Divorce by Mutual Consent can be filed before the Family Court.

Procedure for Divorce By Mutual Consent

Let’s discuss some steps initiated for divorce by mutual consent procedure;

Step 1:- Petition for mutual divorce

At the initial stage, a petition of divorce by mutual consent should be filed jointly by both the husband and wife together for the dissolution of their marriage and for a decree of the divorce is to be presented to before the Family Court by the husband and wife both, on the ground stating that they have been not able and not willing to live together and they have mutually agreed to dissolve their marriage. Then the divorce petition shall be signed by both the husband and wife.

Step 2:- Issuing Summons ( Court Notice)

Summons is issued by a court and it is sent to the second party, and the summons is generally dispatched by speed post (RPAD). The prospect of sending a summons is to let the other party know that the process of divorce has been instated by their spouse. If the husband has initiated the procedure summon will be sent to the wife and vice-versa.

Step 3:- Appearing before Family Court

Both the parties will have to appear before the Family Court after the filing of the divorce petition. The parties could present their respective lawyers or can hire an individual lawyer for both. The court would critically observe the divorce petition along with all the documents provided by the spouse in the court. 

The court may attempt to bring reconciliation between the spouse however, if this is not possible, the matter proceeds for further follow-ups.

Step 4:- Passing orders for a recording of statements on the oath of the spouse

After the divorce petition is scrutinized by the court and it satisfies, it may order the party’s statements to be recorded on oath.

Step 5:- First Motion is passed and 6 months is given before the Second Motion

Once the statements are recorded by the court then the court may grant an order on the first motion. After this, six months is given to the husband and wife to divorce, before they can file the second motion. The maximum period to file for the second motion is eighteen (18) months from the date of the presentation of the divorce petition to be filed before the Family Court.

Step 6:- Argument

The advocates assigned by both parties will argue before the court based on documentary evidence filed in the court along with the divorce petition.

Step 7:- Second Motion and the Final Hearing of the Petition

When the parties have finally decided to go further with the proceedings and appear before the court for the second motion, they can proceed with the final hearings before the family court. This includes the parties appearing and recording statements before the Family Court. 

Recently, the Supreme Court held that the 6 months time period that has been given to the parties can be waived off at the final decision of the court. Even if the court believes that the waiting period will only extend their sufferings, the 6 months can be waived off in this case also.

Step 8:- Decree for Dissolution of Marriage(Final Order):

In a petition for the mutual divorce, both the parties husband and wife must have given free consent (without any compulsion) and there shall not be any differences left in the matters related to contentions regarding custody of a child, alimony, maintenance, property, or any other rights, etc. 

Thus, there needs to be a complete agreement between them for the final decision on the dissolution of marriage. If the court is satisfied after hearing the parties that the allegations in the petition are true and that there cannot be any possibility of reconciliation and cohabitation between husband and wife, it can pass a decree of the divorce declaring the marriage is to be dissolved.

Where to File the Divorce Case in India? (Jurisdiction)

The parties are required to file a petition for divorce in the family court of the city where both husband and wife lived together for the last time, i.e. their matrimonial home. It can even be presented in the court of the city where their marriage was solemnized.

1. The court can be one where a couple seeking divorce last lived.
2. The court can be one where the marriage was solemnized.
3. The court can be one where the wife is residing as of her present address.

Documents Requirement for Mutual Divorce

1. Address proof of husband and wife.
2. Marriage certificate of the spouse.
3. Details of professions and gross monthly income of husband and wife. 
4. Family background information of both husband and wife.
5. Four passport size photographs of the marriage of both the husband and wife
6. Evidence proving spouses are living separately for more than a year.
7. Evidence relating to the failed attempts of reconciliation. 
8. Income tax statements for the last 2-3 years
9. Details of the profession and present remuneration
10. Details of properties and other assets owned by the petitioner

The divorce becomes final once the decree of divorce has been passed by the court. The format of divorce by mutual consent draft can get easily by searching on google.

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