Divorce is a very serious issue. Nowadays, the seriousness is vanished the couple find it very easy to end up a relationship without thinking twice about the decision. Some Couple knows it all about the consequences they could suffer later on but apart from it they decide to end up the marriage rather than sitting together and solving the differences between themselves.
What is Divorce by Mutual Consent?
Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one ground specifically enumerated in Section 13.
Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provides for divorce by mutual consent.
The conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more.
(ii) That they are unable to live together.
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed. Hence marriage should be dissolved. Under these circumstances, a Divorce by Mutual consent can be filed.
As per the Indian Legal system, a divorce procedure fundamentally begins with the filing of a divorce petition.
Where to file a divorce petition
1. The court can be one where 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 present.
The entire procedure of divorce in India starts begins with the divorce petition which is filled by the parties associated with the divorce process and notice of the same is served to the other one.
According to the Hindu Marriage Act, 1955; a petition for a ‘mutual divorce’ can be filed if you and your spouse are facing difficulties and have decided to part your ways legally.
You can even file for divorce if the other party is not willing to get a divorce- this is called, ‘Contested Divorce’.
Points to be discussed before getting a divorce by mutual consent
- Child custody
- Settlement of Property and assets
Requirement of Documents for filing Mutual Divorce Petition:
- Marriage Certificate
- Address Proof – Husband and Wife.
- Four Photographs of Marriage.
- Income tax Statement of last 3 years.
- Details of profession and Income (Salary slips, appointment letter)
- Details of Property and Asset owned
- Information about family (husband and wife)
- Evidence of Staying separately for an year
- Evidence relating to the failed attempts of reconciliation
Procedure for getting a decree of divorce by mutual consent
Step 1: Jointly filing a petition
A divorce petition in the form of an affidavit is to be signed by both parties and filed before a family court in their region.
Jurisdiction of the court should not be a major issue in filing for divorce as the petition can be filed within the local limits of the ordinary civil jurisdiction of where the marriage was solemnized or where either of the parties currently resides.
As mentioned earlier, the parties to a marriage must be living separately for at least one year before filing the petition.
Step 2: First Motion
After filing the petition the parties shall appear before the court and give their statements. If the court is satisfied and the statements are recorded then the first motion is said to have been passed, following which a waiting period of 6 months will be given to the parties before they are able to file the second motion.
This waiting period as statutorily prescribed under Section 13B(2) of the Act is for the parties to introspect and think about their decision. It is a time given for them to reconcile and give their marriage another chance, just in case they decide to change their mind.
Anyhow, sometimes the court may be convinced that the marriage has reached the point of no return and the waiting period will only expand their misery. In that case, this period can be waived off by the court. This period if not waived off can extend up to 18 months. If the parties still want to get divorced they may now file for second motion. The second motion can be filed only after the waiting period of 6 months and before 18 months has elapsed.
Step 3: Second Motion
This is when final hearings take place and statements are recorded again. If the issues of alimony and child custody (if any) are mutually agreed upon the decree of divorce is passed after this step. The marriage has finally ended by now and divorce by mutual consent has been granted.
In my views marriage is a unique friendship where you find a best friend and a soulmate. In friendship sometimes we have to adjust according to our friend as per their likes and dislikes. Similarly, in marriage we need to make some compromise to make it work throughout our life. Taking such important decisions so quickly will offer us nothing. So we should try to make it work rather than leaving someone for just some bad incident in the past months or years.