Mutual divorce is divorce by consent of both parties involved in a marriage. The process of mutual divorce tends to be a lot less expensive and traumatic since both parties have agreed to the proceedings and settlements of the case. It is a prerequisite in mutually filed divorce cases that both parties, even though legally married, have been living separately for a minimum of a year.
However, filing a mutual divorce in India can be complex and requires careful consideration. In this article, we will discuss the mutual divorce procedure in India, including the requirements, process, documents needed, and timelines, to help simplify the process for those considering it.
Table of Contents
- Conditions for Mutual Divorce
- Where to File for Mutual Divorce?
- Documents Required
- Procedure to file a mutual divorce in India
- Landmark Judgment by the Court on Mutual Consent Divorce
- Frequently Asked Questions
- About the author
Conditions for Mutual Divorce
Here are the criteria for mutual divorce across various religious communities in India
For Hindus Marriage
Here are the conditions For mutual divorce under Section 13B of The Hindu Marriage Act, 1955 for Hindus
Joint Petition Filing: Both parties must jointly file a petition for divorce at the district court.
Grounds for Divorce: The parties must have been living separately for at least one year, unable to cohabit, and mutually agree to dissolve the marriage.
Timing of Motion: A joint motion can be made after six months but not later than eighteen months from the date of petition presentation, with no withdrawal by either party during this period.
Court Decree: If the petition is not withdrawn and the court, after an inquiry, is satisfied that the marriage has been solemnized and the averments are true, a decree of divorce is passed, effective from the date of the decree.
Reflective Period: The 6 to 18 months serve as a reflective period, intended for the parties to contemplate their decision and seek advice from relatives and friends.
Living Separately: The period of living separately for one year must immediately precede the petition, indicating a lack of desire to perform marital obligations.
Mutual Consent Continuity: Mutual consent should persist until the divorce decree is passed. The court ensures the bona fides and consent of the parties. Unilateral withdrawal of consent is possible under specific circumstances, such as fraud.
For Muslim Marriage
Mutual Consent: Both spouses must willingly agree to the divorce.
Offer and Acceptance: One party offers divorce, and the other accepts it, crucial for the process.
Terms of Agreement: Mutual agreement on divorce terms, including financial settlements and custody arrangements.
Presence of Witnesses: Some interpretations may require witnesses for the divorce to be valid.
Iddah (Waiting Period): The wife observes a waiting period during which she cannot remarry; duration varies.
Financial Settlement: Involves the return of the wife's dowry or other agreed financial arrangements.
- Additional Conditions for Khula and Mubarat:
- Khula involves an agreement in exchange for part of the woman's property.
- In Mubarat, both spouses must desire divorce, and the proposal can come from either side.
- Mubarat results in an irrevocable divorce upon acceptance.
- Variations exist for Sunnis and Shias regarding rights, obligations, and required form for divorce.
For Christians Marriage
Here are the conditions for mutual divorce under Section 10A of The Divorce Act, 1869, for Christians:
Joint Petition: Both parties can jointly petition the District Court.
Grounds for Divorce include living separately for two years or more, inability to live together, and mutual agreement for dissolution.
Timing of Motion: A joint motion must be made not earlier than six months and not later than eighteen months after petition presentation.
Court Decree: If the petition is not withdrawn, and the court is satisfied after inquiry, it passes a decree, effective from the date of the decree.
For Parsi Marriage
Here are the conditions for mutual divorce under Section 32B of The Parsi Marriage and Divorce Act, 1936, for Christians:
Joint Suit Filing: Both parties can jointly file a suit for divorce, regardless of when the marriage was solemnized.
Grounds for Divorce include living separately for one year or more, inability to live together, and mutual agreement for dissolution. However, the suit cannot be filed until one year has lapsed since the date of marriage.
Court Decree: The Court, after ensuring the marriage was solemnized under this Act, the plaint's averments are true, and the consent was not obtained by force or fraud, passes a decree declaring the marriage dissolved, effective from the date of the decree.
For Special Marriage
Under Section 28 of The Special Marriage Act, 1954, the conditions for mutual divorce are as follows:
Living Separately for One Year or More: Mutual divorce can be sought if both parties have lived separately for at least one year.
Inability to Live Together: The grounds for divorce are based on the parties' inability to live together.
Mutual Agreement: Both parties must mutually agree on the dissolution of the marriage.
- Marriage Certificate
- Four Photographs of Marriage
- Address Proof of Husband and Wife
- Income Tax Statement of Income-Earning Party (Last 3 Years)
- Details of Profession and Income (Salary Slips, Appointment Letter)
- Details of Movable and Immovable Assets
- Family Details of Both Parties
- Proof of Living Separately for a Minimum of One Year
- Certificates Proving Failed Attempts at Reconciliation
- Information about Petitioner’s Professional Career and Current Remuneration (Salary Slips, Appointment Letter)
- Certificates Proving Spouses Living Separately for More than a Year
Procedure to file a mutual divorce in India
In India, the process of mutual divorce varies depending on the religious laws applicable to the parties involved. Here is a general overview of the process for filing for divorce by mutual consent for different religious communities.
Under the Special Marriage Act
The Special Marriage Act of 1954, governs marriages and divorces for individuals of all religions and faiths in India who wish to marry outside the scope of personal laws. The Act includes provisions for divorce, including mutual divorce, which allows couples to seek a divorce through mutual understanding.
The procedure for obtaining a mutual divorce under the Special Marriage Act is as follows:
- Step 1: File a Joint Petition - Both parties initiate the process by filing a joint petition for divorce at the relevant family court, declaring their mutual decision to end the marriage due to irreconcilable differences. This petition includes details of the agreed settlement, covering aspects like property, assets, and children.
- Step 2: Court Inquiries and Statements - The court conducts inquiries and records statements from both parties to verify the authenticity of their mutual consent and understand the grounds for divorce.
- Step 3: Court Order with Cooling-off Period - Following the initial inquiries, the court issues an order that mandates a cooling-off period of at least six months. This period allows the parties to reconsider their decision and explore potential reconciliation.
- Step 4: Second Motion Filing - After the cooling-off period, the parties file a second motion, adhering to the timeframe of six to eighteen months from the court's first order. This motion reaffirms their intention to proceed with the divorce.
- Step 5: Court Hearing and Inquiries - During the second motion, the court conducts a hearing, questioning both parties to ensure the marriage was solemnized and the details in the petition remain true. This step is crucial for the court's satisfaction with the divorce.
- Step 6: Decree of Dissolution - Upon being satisfied with the statements and inquiries, the court issues a decree of dissolution of marriage, officially ending the marital ties between the parties.
In Hindu Marriage
- Step 1: File a joint petition - Firstly, a legal notice for divorce needs to be filed at the relevant family court. This joint petition is signed by both parties, stating that they no longer wish to continue the marriage due to irreconcilable differences between them. This statement should also include the mutually agreed details of the settlement, including property, assets, children,etc.
- Step 2: Appear in court - Once the joint petition is filed, both parties are required to appear in court on the date issued. During this process, both parties are expected to appear in court with their respective counsels.
- Step 3: Scrutiny of the petition by the court - Once the petition is filed and both parties appear in court, the court scrutinizes the petition and documents. If the court is satisfied with the conditions of the divorce and the documents submitted, it will then order the recording of the statement of both parties on oath. In a few cases, the court might attempt to get the parties to reconcile their marriage.
- Step 4: Recording the order and passing the statement - Once the statement of the parties is recorded, the court passes an order of first motion. Once this is through, the court will grant 6 months before the parties can file for the second motion, which must be done within 18 months of the date of filing.
- Step 5: Appearing for the second motion - Once 6 months have passed, the parties can file for the second motion. The 6-18 months are granted to utilize any scope of reconciliation. However, if the parties still wish to proceed, there is only one more step ahead.
- Step 6: The decision of the court: - Upon the absolute agreement of both parties to end the marriage and the complete satisfaction of the court, the divorce is granted, putting a legal end to the marriage between the parties.
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In Muslim Marriage
Muslim personal law in India is governed by the Muslim Personal Law (Shariat) Application Act, 1937. The law provides provisions for divorce, including mutual divorce, which allows Muslim couples to dissolve their marriage with the consent of both parties.
The procedure for obtaining a mutual divorce under Muslim Personal Law is as follows:
In Christian Marriage
The Indian Christian Marriage Act, enacted in 1872, governs the solemnization and dissolution of marriages among Christians in India. The Act provides provisions for divorce, including mutual divorce, which allows Christian couples to dissolve their marriage with the consent of both parties.
The procedure for obtaining a mutual divorce under the Indian Christian Marriage Act is as follows:
- Step 1: Initiating Separation - Before seeking a mutual divorce, the couple must demonstrate that they have been living separately for a specified period. The Act typically requires a separation period of one year or more to establish that the marriage has irretrievably broken down.
- Step 2: Voluntary Agreement - Both parties must agree to the divorce willingly and without any coercion. This agreement should be put into writing, and both spouses must sign the divorce petition jointly.
- Step 3: Filing the Joint Petition - Once the agreement is signed, the couple must file a joint petition for divorce in the appropriate Family Court or District Court. The petition should include details of their marriage, the agreement for divorce, and the reason for seeking divorce.
- Step 4: Providing Evidence of Separation - Along with the petition, the couple should provide evidence of their separation, such as documents proving separate living arrangements, communication records, or witness testimonies supporting the claim.
- Step 5: Court Verification and Counseling - The court will verify the validity of the petition and may conduct counseling sessions to explore the possibility of reconciliation. If both parties maintain their desire for a mutual divorce, the court will grant the divorce decree.
Landmark Judgment by the Court on Mutual Consent Divorce
Silence is not the way to withdraw consent
The Hon'ble High Court of Rajasthan has laid down the principle in the matter of Suman v. Surendra Kumar, AIR 2003 Raj 155. that the silence of either party does not amount to withdrawal of consent. In this matter, the Respondent by his continued silence affected the proceeding for more than three years. If he was withdrawing his consent for the dissolution of marriage by a decree of divorce by way of mutual consent, nothing prevented him from taking that stand before the Family Court at the stage of the second motion.
The Court further held that the husband, on the other hand, decided to adopt a course of silence to harass the wife further. The Court was not inclined to take a technical view of Sub-section (2) of Section 13B of the Act and fall into the same error as the Family Court did. Merely because both parties did not sign the second motion, it cannot be said that the husband's consent was missing at the second stage. On account of the husband's silence, we would like to take the view that the consent to the decree of divorce being granted has to be presumed.
Voluntary Consent Required
The Hon'ble apex court in the matter of Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 has laid down the fact that consent by either party should be given voluntarily. The Court further held that the move enables the Court to proceed with the case to satisfy itself about the genuineness of the averments in the Petition and also to find out whether the consent was not obtained by force, fraud, or undue influence.
Moreover, the Court can make such inquiry as it thinks fit, including the hearing or examination of the parties to satisfy itself whether the averments in the Petition are true. If the Court is satisfied that the consent of parties was not obtained by force, fraud, or undue influence and they have mutually agreed that the marriage should be dissolved, then it must pass a decree of divorce.
Living Separately - Irrespective of Place of Living
The Hon'ble Apex in the aforesaid matter, i.e., in the matter of Sureshta Devi v. Om Prakash, AIR 1992 SC 1904, laid down the fact that the expression “living separately”, connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by the force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses, and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations. With that attitude, they have been living separately for one year immediately preceding the presentation of the Petition. The second requirement that they 'have not been able to live together seems to indicate the concept of broken-down marriage, and it would not be possible to reconcile themselves.
No waiting in mutual consent divorce
Previously, when couples opted for divorce with mutual consent, the court grants them a mandatory 6 months period to consider any chances of reconciliation. This is granted by the court with the intent to save the marriage. After the 6 months is over, the couple may decide to reunite or go ahead with a divorce.
However, according to the new rule, it is not mandatory to opt for a 6 month cooling period, and the decision is left at the discretion of the court. Now, the court can decide based on facts and circumstances if there is a need to order 6 month recuperation period or whether they can divorce right away.
The Hon'ble Apex court, in the matter of Nikhil Kumar vs. Rupali Kumar, laid down that settled principle that based on facts and circumstances, the Court can waive the six months between the 1st motion and the 2nd motion. In this matter, the Court contended that the parties were not happy ever since their marriage in 2011. It is stated that with the setback of a broken marriage, the Respondent needs a change in environment, and thus, she has proposed to move to New York, and it would be difficult for her to get back to India after six months or even sooner. It is further stated that both of them have realized the consequences of their decision, and they have taken the decision out of their free will and without any undue influence or coercion.
In such circumstances, the Hon'ble Apex Court dissolved the marriage between the parties, and the Hon'ble Court also waived off the six-month cooling period. Therefore, the decree of divorce has been passed by the Hon'ble Court.
In conclusion, filing for mutual divorce in India involves a step-by-step process that must be followed carefully. It is important to be prepared with all the necessary documents and to have a clear understanding of the timelines involved. While the procedure can be emotionally challenging, it is important to remain calm and composed throughout the process. At 'Rest The Case,' we have experienced divorce lawyers who can help you navigate the process smoothly.
The grounds for mutual divorce in India are irretrievable breakdown of marriage, mutual consent, and separation for one year or more.
Frequently Asked Questions
Q. How long does it take to get a mutual divorce in India?
The timeline for a mutual divorce in India varies depending on various factors. Generally, it takes around 6-18 months to complete the entire process.
Q. How much does it cost for a mutual divorce in India?
The cost of a mutual divorce in India can vary depending on various factors such as the location of the court, fees charged by lawyers, and other miscellaneous expenses. However, the basic court fees for mutual divorce in India can range from around Rs. 10,000 to Rs. 40,000.
Q. Can a mutual divorce be granted if one party does not agree to it?
No, a mutual divorce requires both parties to agree to the terms and conditions of the divorce. If one party does not agree, the divorce cannot be granted and the case will proceed as a contested divorce.
Q. Can I remarry after obtaining a mutual divorce?
Yes, once the mutual divorce is granted and the marriage is legally dissolved, both parties are free to remarry.
Q. Can a mutual divorce case be withdrawn?
Yes, a mutual divorce case in India can be withdrawn if both parties mutually agree to do so. Both spouses need to communicate their intention to withdraw the case and formally submit a joint request to the court.
About the author
Adv. Vijay Tangri graduated in law in 1994 and joined the LLM program focused on corporate finance and international trade at Northwestern University School of Law Chicago, he began his career in 1995 as a negotiator with a law firm in Chicago and then as part of an investment banking firm in Chicago. After that, from 1999, while being associated with one of the top Senior Advocates of the Supreme Court of India and later with a leading law firm in New Delhi, he has also worked for MNCs such as Accenture, Motorola, and Huawei. And as a litigating lawyer in the courts of India. He has also successfully handled matrimonial cases for over 20 years.