FAMILY & MATRIMONIAL
Mutual Consent Divorce
Mutual Divorce in India is a kind of divorce in which the wife and husband decide themselves mutually to dissolve the marriage. In a mutual divorce, the husband and wife can file a divorce petition after deciding the terms of divorce together. The terms relating to divorce by mutual consent including maintenance/alimony to be paid to the wife, child custody and division of property jointly owned by both are finalized amicably.
Mutual divorce is also known as uncontested divorce as the spouses decide to separate peacefully, without either of them contesting the divorce application in the court. To file a mutual consent divorce, it is pertinent that at least one year has been passed from the date of the marriage. The process of mutual divorce is simpler and faster, and the husband and wife can file a joint divorce petition and get a divorce in 1 to 7 months.
As per law, duration/time of obtaining mutual consent divorce is six months. Although, parties have option of filing the second motion petition any time between six months and eighteen months from the date of the filing of the Mutual Consent Divorce Petition. Spouses should talk to each other about future course
Process/Steps involved in Mutual Divorce:
There are several steps involved to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps:
Joint Petition: The first step is the filing of a joint petition in the respective family court. This joint petition is to be signed by both parties. The divorce petition contains a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. This statement also has the agreement to split the assets, custody of children, etc.
Appearance of Parties: The second step of the procedure is the appearance of both the parties to the divorce in the family court after the petition has been filed. The court fixes this date and the parties appear along with their counsels.
Scrutiny of the Petition by Court: The court thereafter scrutinizes the petition and the documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. In some cases, the court attempts to bring about reconciliation between the parties. When there is a failure to reconcile the parties, the divorce matter is proceeded with.
Recording of statement and passing of the order on First Motion: After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6 month period is given is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion.
Second Motion: After 6 months of the first motion or by the end of the reconciliation period, if both parties still don't agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording of statements before the court. In a recent judgement, 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. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.
Decision of the Court: The most important requirement for a grant of divorce by mutual consent is the free consent of both the parties. In other words, unless there is complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and now the divorce becomes final.
