HOW TO GET A MUTUAL CONSENT DIVORCE AS PER THE HINDU MARRIAGE ACT IN INDIA?

Blogs
21-Jan-2022
blog-img

There has been a surge of matrimonial disputes in recent times.

I have come across men and women who are unable to cope with the harsh realities of their marriages. For them, marriages were never made in heaven, and the only option for them is to approach the Court and seek legal separation by way of mutual consent divorce for their eternal bliss as they claim.

What is the exact procedure to seek mutual consent divorce in India? And from where does the mutual consent divorce begin?

Well, the process begins at home. Yes, at one’s home and not at any Court.

There may appear several reasons due to which a couple may decide to part their ways and legally split from each other. However, in a mutual consent divorce, the reasons for obtaining a divorce are immaterial. The important thing is that the decision for divorce has been taken jointly by both parties with mutual understanding and agreement.

Any marriage between two Hindus is always governed by the Hindu Marriage Act 1955, irrespective of whether the couple officially registers the marriage.

Section 13-B of The Hindu Marriage Act 1955 provides for divorce by way of mutual consent of the parties.

 Section 13-B stipulates;

13-B: 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 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 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Petition referred to in sub-section (1) and not later than eighteen months after the said date, if the Petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been 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.

Interestingly, the essential requirement for applying for divorce by mutual consent is that both the parties must have been living separately for a period of 1 year or more, that presently they are not living together, and that they have mutually agreed to dissolve their marriage.

As I have already stated above, there is no legal obligation on the part of the couple to disclose or reveal the reasons behind the divorce before the Court.

Application for mutual consent divorce:

Once the requirements are met, the intending couple may consult a divorce lawyer of their choice and begin the process for their legal separation by way of divorce.

As the divorce proceedings would be initiated by mutual consent of both the parties, a single lawyer may represent both the parties before the Court. But in practice, I notice two lawyers representing the two parties moving the Petition jointly before the respective Court.

A joint Petition under section 13-B(1) of the Hindu Marriage Act would be prepared by the divorce lawyer. Both the parties have to sign

  1. the Petition,
  2.  Affidavits,
  3.  Vakalatnamas.

After the completion of all the requisite formalities by the lawyer, the Petition would be filed and thereafter listed for hearing before the Court. Again the date fixed for hearing might vary from one Court to another as per the workload of that Court.

On the date of the first hearing, both the parties, along with their lawyer, are required to appear before the Court. First, the Court will try to save the marriage from dissolution, talk to the parties, and try to explore any possibility of any settlement between them because it is obligatory for the Court to give a fair chance to a conciliated or negotiated settlement before adjudication is embarked upon.

Marital disputes are distinct from other types of disputes on account of the presence of certain factors which are not found in other disputes. These factors might be motivation, sentiments, social compulsion, personal liabilities and responsibilities of the parties, the views of the two parties regarding life in general and to the institution of marriage in particular, the security of the future life, so on and so forth. It is the mandate of law and the social obligation of any judge to make an earnest attempt for reconciliation. Heavy responsibility, therefore, lies on the Court concerned to go for Court annexed mediation. The main role of the Court is to discover a solution instead of breaking the family relation.

In case the Court is unable to settle the disputes and differences between the parties, it will move ahead with the mutual consent divorce proceedings.

Statements of both the parties would be recorded before the Court to the effect that they have moved the mutual consent divorce petition out of their own free will and without any force or undue influence from any person.

Subsequently, a date is fixed by the Court after a period of 6 or more months, which may be termed as the ‘cooling-off period.’ This period is not mandatory but a directory.

After the above period elapses, the parties appear before the Court again to assert and consents for the grant of decree of divorce as prayed for earlier. Then the Court examines whether the essential requirements for a decree of divorce on the basis of mutual consent have been met before adjudication and passing its final order. Both the parties shall be entitled to a free copy of the Decree of Divorce from the  Court.

As I have already stated in the beginning, this article is only a brief explanation of the procedure and procedure for obtaining a mutual consent divorce in India. Practically, there are many formalities and complexities attached to the same, which vary from one case to another and from one Court to another, and from one state to another.


Author: Sankar Ghosh

Author Bio: Sankar Ghosh is a practicing lawyer at High Court, Calcutta with 20+ years of experience. He is a consultant and practices in the area of Intellectual Property, Matrimonial, Juvenile Justice, Adoption, and Bengal Excise laws. He is a passionate Counsel providing services in Litigation, Legal Compliance/Advisory to his clients in diverse areas of law.