Divorce by mutual Consent
“Marriages are made in
heaven but it is better to walk out of it if it become a living hell”
The word divorce simply
means bringing an end to the relationship of marriage. Divorce is of two types , first one being the
contested divorce in which one of the party is willing to take the divorce and
other part is not and the second one is the “Divorce by mutual consent” in
which both the parties are ready to get divorced on basis of mutual settlement.
Legal Provisions
: The legal provisions relating to divorce by mutual consent in
case of Hindus are covered by the Hindu Marriage Act, 1955
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 solemnized 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 thy have mutually agreed
that the marriage should be dissolved.
(2) On the motion
of both the parties:
The parties made no 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date, if the petition is not withdrawn in the meantime,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 solemnized
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.
Procedure
for Layman
The following is the procedure for divorce by mutual consent:
- Both
Parties ie Husband and Wife have to reach to Mutual understanding and
agreement regarding terms and conditions for Divorce.
- On
the basis of settlement and agreement, petition for Mutual Consent is
drafted. Under Hindu Marriages, such Petition is filed under section 13 B
of the Hindu Marriage Act. Under Christian Marriages, section 10 A of the
Indian Divorce Act. Under secular or civil marriages, section 28 of the
Special Marriage Act.
- Divorce
Petition will be drafted which will include terms of settlement agreed
between parties.
- Such
Mutual Consent Divorce Petition shall be filed in the Court as court
procedure.
- Matter
will come up for hearing in the Court and generally parties have to be
present before the Court and their statement is recorded.
- After
recording of statements, First Motion will be passed.
- Court
gives six months time to parties to reconsider their decision. This is
called cooling period generally.
- Second
Motion is set up.
- Aforesaid
steps shall be repeated. Statement of parties will be recorded again.
- After
such recording of statement, Court will grant pass order and judgement,
decree for divorce is granted.
Frequently asked
questions from the clients side
1) How much time will
the entire process take and how many times do I need to go to court ?
Ans) 6 Months and mostly two to three hearings .
2) Is it necessary to pay maintenance in Mutual Consent Divorce?
Ans) No it is not necessary if the wife agrees to this proposition
3) What should the settlement agreement contain ?
Ans) Settlement agreement
should contain clauses such Alimony, custody of child, distribution of articles
etc
4) When can I apply for mutual consent divorce ?
Ans) One year after from
the date of marriage on the ground that parties have been living separately since
this one year duration
5) When can I marry , is it soon after the second motion decree
or do I have to wait?
Ans) 90 days after decree
which is the appeal time. You are free to marry after 90 days
6) Can one lawyer
represent both the husband and wife?
Ans) Yes he can
7) Is getting mutual consent Divorce expensive?
Ans) No, it is very economical as compared to a contested
divorce .
8) Do I need to hire a lawyer for Mutual consent divorce or can I
do it on my own ?
Ans) It is upon the discretion of the court to allow you to
represent yourself but take my advise please hire a lawyer.
9) I got married 6 months back, can I divorce my wife before the
one year period ?
Ans) I do not endorse this but some people do get mutual consent
divorce showing their marriage at a back date .
The author is a lawyer in Delhi specializing in matrimonial
issues for any legal consultation she can be contacted at 9873658554
