Legal Guide

All You Need to Know About Mutual Divorce In India

by Bhavya Choudhary · 3 min read

mutual divorce

Introduction

  • When a husband and wife mutually decide that they cannot cohabitate any longer and that Divorce is the best option, they jointly file a petition for mutual Divorce before the Court without making any accusations against one another. This is known as a divorce by mutual consent or mutual Divorce.
  • For instance, if a husband and woman agree that their marriage has ended completely and they have been living separately for at least a year and are further unable to live together, they may be given a mutual divorce.
  • According to research, mutual consent is one of the quickest methods to obtain a mutual divorce in India since other choices take too long. According to the legislation, any marriage that was performed before or after the Marriage Laws (Amendment) Act of 1976 may be dissolved with the approval of both spouses in front of a judge.

Requirements for a Mutual Divorce

  1. There has been a minimum of one year of separate living between the parties. It is questionable whether the lawmakers meant for the parties to live apart voluntarily or as a result of external forces like circumstance or position. 
  2. But as long as the need for the parties’ separate living under the same roof of the matrimonial house or in the separate dwelling is met, it does not appear essential for the Court to look into that subject. 
  3. The Court should not go beyond the statutory limit of its jurisdiction unless the assent of any of the parties to such a petition is vitiated by force, fraud, or undue influence.
  4. The parties have been unable to coexist for any reason at all. In other words, there is no room for compromise or modification between them.
  5. The agreement for the dissolution of the marriage has the parties’ voluntary consent.
  6. The petition may be withdrawn at any time by the parties. It appears that the petition may be withdrawn even at the request of one side within six months of the date it was presented. 
  7. However, the unilateral power of a party to withdraw the petition appears to be restricted when a joint resolution is adopted by the parties after the passing of six months but before the passing of eighteen months from the date of presentation of the petition for inquiring.

How to File for Mutual Divorce?

Obtaining a mutual divorce by mutual consent entails several stages. According to Section 13B of the Hindu Marriage Act, filing a petition is often the first step in the mutual divorce process in India. Two movements are also a part of this process. The crucial actions are as follows:

  1. Submitting a Joint Petition

Submitting a joint petition to the relevant family court is the first step in a mutual divorce. Both parties must sign this joint petition. 

The divorce petition includes a joint statement from both parties stating that they are unable to cohabitate owing to their irreconcilable differences and should be awarded a mutual divorce. This agreement also covers the division of assets, child custody, etc. One must take legal advice before submitting the petition. 

  1. Attendance of Both Parties in Court

After the mutual divorce petition has been filed, the second phase of the process is the appearance of both parties in Court. The Court sets this day, at which time all parties and their attorneys show there.

  1. Court’s Review of the Petition

The Court next reviews the petition and the papers that the parties have filed. When and if the Court is satisfied, it issues an order for the parties’ sworn statements to be recorded. 

The Court will occasionally make an effort to mediate a settlement between the parties. When the parties are unable to agree, the mutual divorce process is initiated.

  1. Statement recording and approval of the First Motion

Order on the first motion is issued by the Court following the recording of the parties’ statements under oath. A six-month window is then offered to the parties, during which time they must file the second motion. This must be submitted within 18 months of the date the petition for the first motion was filed.

  1. Appearing for Second Motion

If both parties have not reached an agreement to reconcile by the end of the reconciliation period or six months after the first move, the parties may appear for the second motion for the final hearing. The parties must also appear before the Court and have their statements recorded. 

The Supreme Court recently ruled definitively that the six-month time is not required and that it may be waived at the Court’s discretion. The Court will not grant a mutual divorce order if the second motion is not filed within the allotted 18-month window. 

In addition, it is obvious from the provision and case law that one of the parties may revoke their consent at any point before the decree’s entry.

  1. The Court’s decision

The free consent of both spouses is the primary prerequisite for a mutual divorce to be granted. In other words, the Court cannot issue a judgment for mutual Divorce unless there is total agreement between the husband and wife on the dissolution of the marriage and unless the Court is completely pleased. 

The Court issues the necessary orders and dissolves the marriage based on the declarations made by the parties and the specific facts and circumstances of the cases. The mutual Divorce is now legally final when the Court issues the mutual divorce decree.

What details, papers, or materials are needed for mutual Divorce?

A Mutual divorce would need the following papers:

  • Husband’s address proof 
  • Wife’s address proof
  • Information about the husband and wife’s current jobs and income
  • Marriage Certificate
  • Details about your family’s history
  • Images showing a husband and wife married
  • Documentation that shows that the husband and wife are not living together for more than a year.
  • Proof that unsuccessful efforts at reconciliation
  • Tax-related documents
  • Information on the parties’ assets and property
  • Depending on the specific facts and circumstances of the case, additional papers can also be needed.

Benefits of a Mutual Divorce

  • A mutual divorce prevents pointless arguments and saves a lot of time and money. 
  • Mutual Divorce is one of the greatest solutions available, given the growing number of divorce applications. 
  • It is the shortest type of Divorce, saving both time and money as well as reducing stress. 
  • In addition to this, the parties are free to resolve any significant issue, even delicate ones like child custody and maintenance. 
  • As a result, it is the simplest type of Divorce and undoubtedly less expensive and time-consuming than disputed Divorce.

Conclusion 

The blog discusses Mutual Divorce in India. Marriage and Divorce are covered by a sufficiently developed body of personal law in India, including a significant number of legislation and case laws. The Indian family courts have done an exceptional job of comprehending that these laws must also adapt to a changing society.

To obtain a divorce, one needs to speak with a Divorce Lawyer. An experienced Divorce lawyer can help you achieve a divorce quickly and in the best way possible. Therefore, it is advised to seek legal advice in such circumstances.

Divorce is often a messy process, where both parties have to deal with repressed emotions that may cause harm to themselves as well as the other party. Therefore, it is advisable to Consult a Divorce Lawyer.

Bhavya Choudhary

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Bhavya Choudhary

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