DIVORCE BY MUTUAL CONSENT

Table of Contents

What is Divorce by mutual consent?

Divorce is the legal process of separation of a married couple. A divorce is said to be Divorce by mutual consent if both the parties i.e. husband and wife decide to part ways with their own will. Both husband and wife can apply for Divorce mutually.

What are the laws relating to Divorce by mutual consent for different religions?

Hindus

Section 13B of Hindu Marriage Act, 1955 applies for Hindus, Sikhs, Jains and Buddhists.

Muslims

Under Muslim laws, Divorce comes under two categories- Judicial and extra-Judicial. Divorce by mutual consent comes under extra-judicial category. There are two types of divorce by mutual consent namely ‘Khula’ and ‘Mubarat’. Both of them are act of parties and there will be no intervention by court.

Christians

Section 10A of Divorce Act, 1869 deals with Divorce by mutual consent.

Parsi

Divorce by mutual consent of the parties can be applied under section 32B of Parsi Marriage and Divorce Act, 1936

Inter-religious marriages

Coupes of inter-religious marriage can apply for divorce under section 10A of Special Marriage Act, 1954.

What are the requirements for Divorce by mutual consent?

The couple must be living separately for atleast 1 year.
Both the husband and wife should be agreed upon the divorce.
The parties couldn’t live together anymore.

What are the things to be settled before applying for Divorce?

Child custody – Which parent gets the custody of child/children?
Maintenance- If one party is unable to support themselves financially, it should be decided how much should the other party provide as maintenance.
Settlement of properties and other assets.

What are the documents required for filing a Divorce petition?

Marriage Certificate
Address Proof of both Husband and Wife.
Four Photographs of Marriage.
Income tax Statements.
Details of profession and Income.
Details of Property and Asset owned.
Information about family of both husband and wife.
Evidence of Staying separately for one year.
Evidence relating to the failed attempts of reconciliation.

What are the steps involved in getting a divorce?

Step 1 – Filing a joint petition

The petition should be signed by both the parties and filed in a respective Family court.

Where can a petition for mutual divorce filed?

A couple can file for mutual divorce in a Family court in a city where:

They are residing i.e. matrimonial home.
Their marriage was solemnized
Wife is currently residing.

Step 2 – Appearance of both the parties before Family court judge for First Motion

Both the parties have to appear along with their legal counsels before the Family Court Judge. The Judge will go through the contents of the petition along with all the documents presented before the Court. The Court may attempt to reconcile the differences between the spouses, however, if it is not possible, the matter will proceeded further.

Step 3- Statement on Oath

The statements of the parties will been recorded on oath and an order on the first motion will be passed by the court. After this, a six month period will be given to the parties, after which the parties should file the second motion.

Step 4- Second Motion

After six months from the first motion or by the end of the reconciliation/cooling period, if both parties still don’t agree to come together, then the parties may appear for the second motion for the final hearing. This includes recording of statements before thecourt. In Amardeep Singh vs Harveen Kaur[i] case, The Apex court waived the statutory waiting period of six months. If the second motion is not made within a period of 18 months from the first motion, then the court will not pass the decree of the divorce. Anyone of the parties may withdraw their consent at any time before the passing of the decree.

Step 5- Final Decree

If the court gets satisfied after hearing the parties, the contents in the petition are true and that there is no possibility of reconciliation and the issues pertaining to maintenance, custody of children, properties etc. are settled, Court 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.

What are the benefits of Divorce by mutual consent?

Saves time, there won’t be any unnecessary disputes as it is something both the parties has already agreed upon.
Matters relating to property, maintenance and child custody would have been already decided.
The job of court is to simply approve and legalise the separation mutually agreed by the couple.

[i] AIR 2017 SC 4417