Divorce law in India and How to file Divorce Petition under Hindu Marriage Act, Special Marriage Act, Divorce Act and Muslim Marriage Act.

Filing of Divorce Petition by Mutual Consent of Husband and Wife under different laws in India.

The easy way to get Divorce is filing Mutual Consent Divorce Petition with the Consent of Husband and Wife on mutually agreed terms. Benefit of Mutual consent divorce are:

- There is no need of giving any reason for Divorce and Privacy will be protected

- Mutual Consent Divorce can be obtained soon without much expenses

- It is the peaceful way of getting separated without hurting the other person

- Personal friendship can still be maintained even after separation

- If all the documents submitted are in order, the court will grant divorce without delay.

 

What are the Laws Governing Mutual Consent Divorce

Since India has separate personal laws for different religions, the law governing Divorce will depend on the Religion of the Parties or the method of registration of the Marriage. The laws are:

 

Hindu Marriage Act, 1955

HMA applies to people belongs to Hindu, Sikh, Buddhist and Jain Religion

 

Divorce Act 1869

Divorce Act 1869 applies to people belongs to Christian Religion

 

Muslim Marriage Act 1939

Muslim Marriage Act 1939 governs the Law related to Marriage and Divorce of Muslim Couples.

 

Special Marriage Act 1954

Special Marriage Act applies to couples who have registered their marriage through court and those belonging from different religion.

 

Mutual Consent Divorce Law and applicable Sections

Hindu Marriage Act, 1955

As per Section 13B of Hindu Marriage Act, 1955 husband and wife can get dissolve their marriage by Mutual Consent Divorce. The Provisions are:

 

Section 13B Divorce by mutual consent
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

 

Special Marriage Act 1954

As per Section 28 of the Special Marriage Act, 1954 the couple who married inter-religion or through Court marriage can file for Divorce by mutual consent. Relevant Provision of the Act is:

 

Section 28. Divorce by mutual consent
(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

 

Divorce Act 1869

Couple who married under Christian law can get Mutual Consent Divorce under Section 10A of Divorce Act 1869. Provision under the Law is:

Section 10A Dissolution of marriage by mutual consent

(1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.

 

Conditions to apply for Mutual Consent Divorce

- Husband and wife has to be living separately at least for one year

- In case of Divorce Act for Christians, the period is two years

- There should not be any conjugal relationship during the period

- Consent of Husband and wife should be mutual for divorce

 

Common terms to be agreed for Mutual Consent Divorce

- Decision Regarding custody of child must be taken mutually

- Alimony, lump sum maintenance must be decided between the parties.

- Terms for return of property if any, Dowry, jewellery, streedhan etc must be finalised

- Bearing of Litigation expenses must be finalised

 

Which Court has Jurisdiction to file Mutual Consent Divorce petition

Mutual Consent Divorce petition can be filed in a court near one of the following places

1. Where the couple last resided

2. Place of Marriage

3. Where the wife resides.

 

Time Limit and Limitation

- Divorce process may take around six months after filing

- Maximum period allowed to file 2nd motion is 18 months

- Those who want to shorten the period can file a separate application to waive of cooling period of six months and can be finalised within 3 months.

 

What are the Documents required to be filed with Mutual Consent Petition

1. Affidavit of both the parties.

2. Copy of Marriage Certificate

3. Joint photographs of parties at the time of marriage

4. Proof of residence of both the parties

5. Proof of identity of both the parties

6. Passport Size Photographs

This is a brief list, but other documents may be required on the basis of grounds on which the Petition is filing.

 

What is the Procedure to file Mutual Consent Petition

Petition for Mutual divorce consent Divorce

The First step is to File a Joint petition in the family Court/District Court having Jurisdiction as mentioned above. The petition should state that both the parties are unable to live together and have mutually agreed to dissolve the marriage and that they are living separately for a period of one year or more in case of HMA and more than 2 years in case of Divorce Act. The petition needs to signed by Both parties. Separate lawyer will present the Mutual petition before the court for both the parties.

First Motion
After the petition is filed and accepted by the Court a date for First motion will begiven.

After examining the documents and the petition it will be presented in the court. The Hon'ble judge may upon being satisfied direct the court to record the statements of parties, then the parties have to both sign and give thumb impression in the petition  and submit it before the Judge. The Court will grant the first motion and allow cooling period. After completion of First Motion the cooling period will be allowed.

Cooling-Off Period
After First motion a Cooling period of six months is given. After that Second motion can be filed. Cooling period is given to the couple to reconsider their decision or to find any amicable solution. If they agree upon to co-habit, give each other a chance, the couple may appeal before the court to cancel the mutual Divorce petition, which the court will happily do so.

Second Motion
After six months of the first motion or at the end of the cooling off period, if both parties still don't agree to live together and desires to go for second motion, they can file for second motion between a time frame of six to eighteen Months.

The second Motion also known as Final hearing of a Mutual Consent Divorce includes parties having to appear and record their statements before the Family Court.

Grant of Decree of Divorce
Finally before Granting Divorce Decree the  court will confirm and satisfy itself that both parties have settled matters related to alimony, custody of a child, maintenance, property, and such other things amicably and that there remains no disagreements between the parties. the court will finally grant a Divorce Decree.

Can appeal be filed against Mutual consent Divorce order

No, Once the Court Grants a Divorce Decree in Mutual Consent it cannot be Challenged nor can you file for appeal in Higher Court Challenging the Decree at a later date. It is Final Order and nothing can be challenged as the parties have already given consent for Decree of Divorce.

 

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