Divorce by mutual consent
Step by step
procedure to file for a Mutual DivorceAccording 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'.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 Hindu Marriage Act, 1955 gives the right
to dissolve the marriage if you or your spouses are facing difficulties in
marriage.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'.Now check out the step
by step procedure involved in case of Mutual Divorce:Procedure to be
followed for a Mutual Divorce.Step 1: Petition to file
for divorceFirstly, a joint
petition for dissolution of marriage for a decree of divorce is to be presented
to the family court by both the spouses on the ground stating that they have
not been able to live together and have mutually agreed to dissolve the
marriage or they have been living separately for a period of one year or more.This petition will,
then, be signed by both the parties.Step 2: Appearing before
Court and inspection of the petitionBoth the parties will
have to appear before the family court after the filing of the petition.The parties would
present their respective counsels/lawyers.The court would
critically observe the petition along with all the documents presented in the
court.The court may even
attempt to bring reconciliation between the spouses, however, if this is not
possible, the matter proceeds for further follow-ups.Step 3: Passing orders
for a recording of statements on oathAfter the petition is
scrutinized by the court and it satisfies, it may order the party's statements
to be recorded on oath.Step 4: First Motion is
passed and a period of 6 months is given before the Second MotionOnce the statements are
recorded, an order on the first motion is passed by the court.After this, a six months
period is given to both the parties to a divorce, before they can file the
second motion.The maximum period to
file for a second motion is 18 months from the date of presentation of the
divorce petition in the family court.Step 5: Second Motion
and the Final Hearing of petitionOnce the parties have
decided to go further with the proceedings and appear for the second motion,
they can proceed with the final hearings.This includes parties
appearing and recording of statements before the Family Court.Recently, the Supreme
Court has held that the 6 months period given to the parties can be waived off
at the decision of the court.Therefore, the parties
who have genuinely settled their differences including alimony, custody of the
child or any other pending issues between the parties, this six months it can be
waived off.Even if the court is of
the opinion that the waiting period will only extend their sufferings, the six
months can be waived off in this case also.Step 6: Decree of
Divorce:In a mutual divorce,
both parties must have given consent and there shall not be any differences
left in the matters related to contentions regarding alimony, custody of a
child, maintenance, property, etc.Thus, there needs to be
complete agreement between the spouses for the final decision on the
dissolution of marriage.If the court is
satisfied after hearing the parties that the allegations in the petition are
true and that there cannot be any possibility of reconciliation and
cohabitation, it can pass a decree of divorce declaring the marriage to be
dissolved.The divorce becomes
final once the decree of divorce has been passed by the court.
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 Hindu Marriage Act, 1955 gives the right
to dissolve the marriage if you or your spouses are facing difficulties in
marriage.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'.Now check out the step
by step procedure involved in case of Mutual Divorce:Procedure to be
followed for a Mutual Divorce.Step 1: Petition to file
for divorceFirstly, a joint
petition for dissolution of marriage for a decree of divorce is to be presented
to the family court by both the spouses on the ground stating that they have
not been able to live together and have mutually agreed to dissolve the
marriage or they have been living separately for a period of one year or more.This petition will,
then, be signed by both the parties.Step 2: Appearing before
Court and inspection of the petitionBoth the parties will
have to appear before the family court after the filing of the petition.The parties would
present their respective counsels/lawyers.The court would
critically observe the petition along with all the documents presented in the
court.The court may even
attempt to bring reconciliation between the spouses, however, if this is not
possible, the matter proceeds for further follow-ups.Step 3: Passing orders
for a recording of statements on oathAfter the petition is
scrutinized by the court and it satisfies, it may order the party's statements
to be recorded on oath.Step 4: First Motion is
passed and a period of 6 months is given before the Second MotionOnce the statements are
recorded, an order on the first motion is passed by the court.After this, a six months
period is given to both the parties to a divorce, before they can file the
second motion.The maximum period to
file for a second motion is 18 months from the date of presentation of the
divorce petition in the family court.Step 5: Second Motion
and the Final Hearing of petitionOnce the parties have
decided to go further with the proceedings and appear for the second motion,
they can proceed with the final hearings.This includes parties
appearing and recording of statements before the Family Court.Recently, the Supreme
Court has held that the 6 months period given to the parties can be waived off
at the decision of the court.Therefore, the parties
who have genuinely settled their differences including alimony, custody of the
child or any other pending issues between the parties, this six months it can be
waived off.Even if the court is of
the opinion that the waiting period will only extend their sufferings, the six
months can be waived off in this case also.Step 6: Decree of
Divorce:In a mutual divorce,
both parties must have given consent and there shall not be any differences
left in the matters related to contentions regarding alimony, custody of a
child, maintenance, property, etc.Thus, there needs to be
complete agreement between the spouses for the final decision on the
dissolution of marriage.If the court is
satisfied after hearing the parties that the allegations in the petition are
true and that there cannot be any possibility of reconciliation and
cohabitation, it can pass a decree of divorce declaring the marriage to be
dissolved.The divorce becomes
final once the decree of divorce has been passed by the court.
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