Mutual Consent Divorce in India

If you are planning to get a divorce, mutual consent divorce should always be preferred over a contested divorce. Obtaining a divorce through mutual consent is advantageous as it saves both time and money. The provision for dissolving marriage through mutual consent in India is included in Section 13B of the Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. Any marriage solemnized before or after the Marriage Laws (Amendment) Act, 1976, is entitled to this provision.

Though several laws have been passed over time, the divorce procedure in India remains complex, often taking several months to conclude. The Indian judicial system believes that the extended time span might allow the couple to reconsider their marriage, potentially saving it from dissolution.

Procedure to File Mutual Consent Divorce Petition

1. Petition to File for Mutual Divorce

The first step is to file a joint petition in the family court under:

• Section 13B of the Hindu Marriage Act, 1955
• Section 32B of the Parsis Marriage and Divorce Act, 1936
• Section 10A of the Indian Divorce Act, 1869
• Section 28 of the Special Marriage Act, 1954

The petition should state that both parties are unable to live together, have mutually agreed to dissolve the marriage, and have been living separately for a period of one year or more. The petition must be duly signed by both parties.

2. First Motion

After the petition is filed and accepted by the court, a date for the first motion is provided. Respective lawyers present the mutual petition before the judge. Upon examining the documents and petition, the judge may direct the court to record the statements of both parties under oath. These statements, along with signatures and thumb impressions, are submitted before the judge. The court then grants the first motion.

3. Cooling-Off Period

Following the first motion, a cooling-off period of six months is given before the second motion can be filed. This period allows the couple to reconsider their decision. If they choose to reconcile, they may request the court to cancel the mutual divorce petition.

4. Second Motion

If the parties still wish to proceed with the divorce after the cooling-off period, they may file for the second motion between six to eighteen months after the first motion. This final hearing requires both parties to appear and record their statements before the family court.

Documents Required to File a Mutual Divorce Petition

1.    Age, identity proof, and address proof of both petitioners.

2.    Two passport-size photographs of each petitioner.

3.    Proof of marriage, such as a marriage certificate or marriage photographs.

4.    Settlement agreement detailing maintenance, property distribution, stridhan, child custody, etc.

5.    Proof of separation for the stipulated period under the relevant Act.

6.    Vakalatnama and other affidavits.

Advantages of Filing Mutual Divorce

• Fastest and simplest way to obtain a divorce, saving time, money, and energy.
• Avoids unnecessary quarrels between the couple.
• Safeguards the privacy of the parties.

Essential Requirements for Mutual Divorce

1.    Separation Period: Husband and wife must have been living separately for at least one year (two years for Christians).

2.    No Congenial Relationship: The separation should indicate the absence of a conjugal relationship during the prescribed period.

3.    Mutual Agreement: Both husband and wife must agree to dissolve their marriage.

Mutually Agreed Terms Before Filing

Before filing the petition, the couple must mutually agree upon:

1.    Custody of Children

2.    Alimony/Maintenance: Lump-sum payment or periodic maintenance.

3.    Return of Items: Dowry, stridhan, etc.

4.    Litigation Expenses

Facts to Know Before Filing Mutual Consent Divorce

1.    The separation period must be completed before filing the petition (one year for Hindus, two years for Christians).

2.    The joint petition can be submitted in the family or district court where:

o   The couple last resided together.

o   The marriage was solemnized.

o   The wife currently resides.

3.    The entire process typically takes six months.

4.    The second motion period can be extended up to 18 months.

5.    The cooling-off period of six months can be waived under certain conditions by filing a separate application, subject to the judge’s discretion.

Granting of Divorce Decree

Before granting the divorce decree, the court ensures that:

1.    All matters related to alimony, child custody, maintenance, property, and other concerns are amicably settled.

2.    There are no disagreements between the parties. Once satisfied, the court grants the divorce decree.

Non-Appealable Nature of Mutual Divorce

Once the court grants a divorce decree in mutual consent, it cannot be challenged or appealed in a higher court. The decree is final and binding as mutual divorce represents the consent of both parties.

Anuj Dewan & Associates specializes in filing mutual divorce petitions and provides comprehensive legal assistance in Punjab, Haryana, Chandigarh, and New Delhi. With expertise in family law, they ensure a smooth and efficient process, guiding you through each step with professionalism and care.

Mutual consent divorce is a practical and less adversarial approach to ending a marriage. By facilitating amicable resolutions, it ensures minimal emotional and financial strain on both parties.