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, conditions, documents needed, and timelines, to help simplify the process for those considering it.
Table of Contents
- Legal Procedure to Obtain Mutual Divorce in India
- Conditions for Mutual Divorce
- Documents Required
- Landmark Judgment by the Court on Mutual Consent Divorce
- Conclusion
- Frequently Asked Questions
Legal Procedure to Obtain Mutual Divorce in India
The legal process to apply for a mutual divorce slightly varies with the jurisdiction of that particular place. But there are some general steps which remain the same for everyone. Let’s understand these steps together
Step 1: Filing the Mutual Divorce Petition
- Drafting the Petition: You should always consult a good lawyer to prepare your mutual divorce petition. Don’t forget to add the following details: the reason for divorce, any arrangements for children if applicable, and details of assets.
- Signing the Petition: Post preparing the mutual divorce petition both spouses are required to sign the petition. This indicates their consent to the divorce terms.
- Submission to the Court: Next you have to submit the petition to your nearby family court which has jurisdiction over your case. You’ll also be required to pay the necessary filing fees.
Step 2: Court Hearing and Inspection
- First Court Appearance: Attend the first court hearing. Here the court examines your submitted petition and questions for any clarifications if needed.
- Mandatory 6-month Separation: In some jurisdictions, the court asks for proof of the mandatory separation period before accepting your mutual divorce petition.
Step 3: Record Statement on Oath
In this step, both parties are required to record their statements on oath. This procedure confirms their desire for a mutual divorce. It also confirms their agreed-upon terms.
Step 4: First Motion
- Submission of First Motion: Now submit your first motion for a mutual divorce case to the court.
- Counseling Session (Optional): Some jurisdictions even ask couples to attend a few counseling sessions to explore the possibility of reconciliation.
Step 5: Second Motion and Final Hearing
- Submission of Second Motion: You can file for a second motion for mutual divorce after some mandatory waiting period (if any) in your case.
- Final Hearing: In this step, you are supposed to attend the final hearing of your mutual divorce case. At this step, the court reviews your case very well and ensures both parties are still in agreement.
Step 6: Divorce Decree
- Issuance of Divorce Decree: If the court is satisfied with your terms and conditions then a divorce decree is issued.
- Registration of Divorce Decree: You are supposed to register your divorce decree at the marriage registrar's office.
- Formal Conclusion: The marriage is officially considered dissolved upon issuance of the divorce decree.
Note: It is vital to consult some highly qualified family lawyer to understand the legal requirements specific to your jurisdiction. Laws related to mutual divorce can vary a lot, and a legal professional here will make sure that you prepare all necessary documents accurately and file them correctly.
Conditions for Mutual Divorce
Here are the conditions 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
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Joint Petition Filing: Both parties must jointly file a petition for divorce at the district court.
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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.
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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.
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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.
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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.
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Living Separately: The period of living separately for one year must immediately precede the petition, indicating a lack of desire to perform marital obligations.
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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
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Mutual Consent: Both spouses must willingly agree to the divorce.
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Offer and Acceptance: One party offers divorce, and the other accepts it, crucial for the process.
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Terms of Agreement: Mutual agreement on divorce terms, including financial settlements and custody arrangements.
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Presence of Witnesses: Some interpretations may require witnesses for the divorce to be valid.
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Iddah (Waiting Period): The wife observes a waiting period during which she cannot remarry; duration varies.
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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:
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Joint Petition: Both parties can jointly petition the District Court.
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Grounds for Divorce include living separately for two years or more, inability to live together, and mutual agreement for dissolution.
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Timing of Motion: A joint motion must be made not earlier than six months and not later than eighteen months after petition presentation.
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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:
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Joint Suit Filing: Both parties can jointly file a suit for divorce, regardless of when the marriage was solemnized.
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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.
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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:
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Living Separately for One Year or More: Mutual divorce can be sought if both parties have lived separately for at least one year.
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Inability to Live Together: The grounds for divorce are based on the parties' inability to live together.
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Mutual Agreement: Both parties must mutually agree on the dissolution of the marriage.
Documents Required
- 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
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.
Conclusion
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.
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 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. 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, as well as a litigating lawyer in the courts of India. He has successfully handled matrimonial cases for over 20 years.
