This article has been written by Miss Vasundhara Sharma, a 2nd year student of Kirit P Mehta School of law , NMIMS college, Mumbai.
I) ABSTRACT–
Divorce is defined as a judicial separation between two parties indicating that the marriage has ended between the two parties due to some issues. Mutual Consent Divorce is when both parties have agreed to end their marriage and the most important factor being that consent is obtained from both parties , in some cases divorce is not mutually consented too in which case the marriage can be reconstructed and rearranged however it is not in the case of mutual consent.The procedure for divorce is different for different religions. Hindus can attain divorce under Section 13B of the Hindu Marriage Act while Christians can attain divorce under Indian Divorce act of 1869 and the Indian Christian Act of 1872.
II) INTRODUCTION-
Mutual Divorce is when two parties consensually agree to separate, this gives the individual a new perspective to life and can restart and reconstruct their life in a different manner. The word ‘Divorce’ often stirs discomfort when it is portrayed in society and is still considered as a taboo to some extent however there are certain cases where the society is broadening their perspective and is starting to accept these as well. Different Religions have different methods and procedures when it comes to filing for a divorce. Section 10 A of the Indian Divorce Act 1869 lays down certain conditions as to when a divorce can be filed between two parties which are under the following conditions under Section 28 of the Indian Divorce Act-
1) The parties have been living separately for a year
2) The parties cannot cohabit with each other
3) The parties obtain mutual consent to end their marriage
The conditions are the following –
1) The parties have been living separately for a year or more than other
2) There is no scope for reconciliation
3) The parties can file a suit for mutual divorce after 1 year of marriage
A Mutual Divorce can be filed under the following –
1)Jurisdiction in which the parties last resided together
2)Jurisdiction in which the husband is living separately.
3)Jurisdiction in which the wife is living separately.
4)Jurisdiction in which the marriage of the parties had taken place
Requirements –
1) Both parties agree to get a mutual divorce-
This indicates that throughout the court-mandated divorce process, the parties will agree to dissolve their marriage. Should one of the parties ever withdraw their permission, the divorce will no longer be a mutually disputed divorce and the court will not issue it. The Bombay High Court held in Mr. Prakash Alumal Kalandari vs. Mrs. Jahnavi Prakash Kalandari (2011) that the Court presumes the parties are consenting to divorce until they prove otherwise when a joint petition under Section 13B of the Hindu Marriage Act, 1955 is filed. The court can no longer issue a divorce decision if one or both of the parties revokes their permission.
2) Both parties are not living with each other for more than a year
This implies that while parties are cohabiting, a mutual divorce cannot be filed. A mutual divorce requires that the parties be separated for a minimum of one year prior to the filing of the divorce petition. It will also be considered a separation if the parties are living under the same roof but are not living together as husband and wife. The Bombay High Court ruled in Miten v. Union of India (2008) that staying apart for a year is a prerequisite for pursuing a divorce under Section 13B of the Hindu Marriage Act, 1955. It cannot be waived since the legislature included this clause while taking into account societal norms and legal interpretations
3) Both parties agree that there is no scope for reconciliation
Even after making every attempt, the parties are unable to coexist, and their only remaining choice is a mutual divorce. The Supreme Court stated in Sureshta Devi v. Om Prakash (1991) that the expression “had not been able to live together” merely indicates that the marriage has collapsed to the point where it is unimaginable to reconcile. They have filed a petition for mutual divorce since it is evident that they are no longer able to put up with one another. It is crucial to confirm that their agreement is given voluntarily and not through deceitful tactics.
Now as mentioned before different religions have different procedures when it comes to filling for a divorce-
III) TYPES OF MARRIAGES UNDER DIFFERENT RELIGIONS–
1)HINDU MARRIAGES
Filing of a joint petition before the family court –
This petition is presented before the family court by mutual consent of the parties. In this petition, the parties specify the time and place of their marriage, the time since when they are not living with each other, the reasons behind their broken marriage, and why they should be given a divorce. The period of living separately should not be less than one year, and both parties are mandated to sign the petition. Court fees are submitted along with the petition.
The Appearance of the parties before the court or First Motion –
After the filing of the petition, the parties will appear before the court and make their statements. The court will examine the facts mentioned in the petition and the documents submitted with it. The court may attempt to unite the parties, but if the marriage is broken beyond reasonable limits, the court may continue with the process. The court may even waive the cooling-off period, which is a minimum of six months and a maximum of eighteen months. If the cooling-off period is not waived, then the second motion can be filed after six months of the presentation of the petition before the family court and before eighteen months of the same.
Second Motion –
As soon as the parties appear for the second motion, they proceed with the final hearing. Joint statements are recorded again, and if the issues relating to alimony, custody of the child, and maintenance are settled, then the court passes a decree of divorce. After the decree has been passed, the marriage gets dissolved.
Documents required-
The following documents are required for filing a mutual divorce petition in India –
Marriage Certificate (if the marriage is registered)
Identity Proof of both husband and wife
Address Proof of both husband and wife
4 Photographs of Marriage
Marriage Invitation Card
Passport-size photograph of husband and wife (2 each)
Income tax statement of last 3 years
Details of property and assets owned by the parties
Proof of not living together for not less than one year
Proof to support failed attempts of reconciliation
2)CHRISTIAN MARRIAGES-
Divorce proceedings are initiated when the parties file the divorce petition along with an affidavit in the district court.
The petition includes the following details –
Name of the parties
Status and domicile of the parties
Date and place of marriage
A permanent address where the parties live
The Place where the parties last cohabited together
Children’s names with date of birth
The ground for seeking mutual divorce
The facts and details by which the petitioner seeks the relief
That the parties are not deceiving the court by collaborating
The statements are recorded by the parties before the court.
After six months and before eighteen months of the filing of the petition, the parties reappear before the court and file the second motion.
On hearing both parties, if the court is satisfied that the averments made in the petition are true and correct, then the marriage gets dissolved.
3)PARSI MARRIAGES–
A mutual divorce petition is filed by the parties before the court of law.
The court records the statements of both parties and examines whether the statements mentioned in the petition are correct or not.
Upon hearing both parties, if the court gets satisfied with the statements mentioned in the petition, then the marriage gets dissolved.
No cooling-off period is provided in Parsi Marriage and Divorce Act 1936.
4)MUSLIM MARRIAGES-
In cases of Khula –
The wife makes an offer of divorce to the husband.
The husband accepts the offer with consideration given by the wife.
On acceptance by the husband, the marriage gets dissolved.
After the marriage gets dissolved, the wife is required to observe iddah.
In cases of Mubarat –
Either husband or wife can make the offer.
The other party accepts the offer.
On acceptance by the other party, the marriage gets dissolved.
After the marriage gets dissolved, the wife is required to observe iddah.
In Special marriage
A mutual divorce petition is filed by the parties before the court of law.
The court records the statements of the parties and examines the statements.
The parties re-appear before the court after observing the six months of the cooling-off period.
IV)Process For Filing Divorce By Mutual Consent-
The process for filling a divorce can be a hectic procedure and requires different settings in different times i.e. when it comes to the place , documents and initiative taken , there is always a mediator who first tries to settle things between the two parties and then when things absolutely seems impossible to patch the process of divorce begins-
Filing of the Petition in the Family Court
Joint petition for dissolution of marriage for a decree of divorce is presented to the Family Court by both the spouses on the ground stating that they have not been able to reconcile the differences and live together. Thus, have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more. This petition has to be signed by both the parties.
Requirement of Documents for filing Mutual Divorce Petition:
Address Proof – Husband and Wife.
Identity Proof of Husband and Wife.
Two Passport Size Photographs- Husband and Wife respectively
Four Photographs of Marriage.
Marriage Card.
Memorandum of Understanding.
Evidence of Staying separately for a year.
Marriage Certificate (If registered)
Appearance before the Family Court Judge for First Motion for Divorce
Both the parties will enter their appearance in the Court along with their legal counsels. The Family Court Judge will go through the contents of the petition along with all the documents presented in the Court. Court may attempt to reconcile the differences between the spouses, however, if this is not possible, the matter proceeds further.
Joint Statement on Oath
After going through the contents of the application, the Court may order the party’s joint statements to be recorded on oath and joint statements are signed by both the parties along with their respective counsels and then First motion is passed.
First Motion order is passed, 6 Months Time period is given for the Second Motion
An order on the first motion is passed by the court. After this, a six months cooling period is given to both the parties to a divorce, before they can file the second motion. The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.
Second Motion hearing and Final Decree
Once the parties have decided to go further with the proceedings and appear for the second motion, they proceed with the final hearings. This includes parties appearing and recording of joint statements before the Family Court. If the court is satisfied after hearing the parties that the contents in the petition are true and that there cannot be any possibility of reconciliation and cohabitation and the issues pertaining to alimony, custody of children, properties, pending litigations etc are settled, Court may pass a decree of divorce declaring the marriage to be dissolved. Divorce becomes final once the decree of divorce has been passed by the court.
V)We can better understand this with a few case laws –
In Smruti Pahariya v. Sanjay Pahariya, (2009), the Supreme Court held that the non-attendance of a spouse in court in a mutual consent divorce petition cannot be assumed as consent after the expiry of the six-month cooling-off period. The fact that they signed the first motion under Section 13B of the Hindu Marriage Act, 1955, plays no role in establishing their consent in the second motion.
In Anamika Srivastava v. Anoop Srivastava, (2022), the Allahabad High Court held that it is not supposed to force parties to engage in mediation where the marriage has irretrievably broken down, considering the fact that the parties have been living separately for eleven years and have appeared before the mediation center of the court and have failed to reconcile.
In Sandhya Sen v. Sanjay Sen (2019), the Chhattisgarh High Court held that the existence of a dispute was not a prerequisite for the grant of divorce by mutual consent as the parties had lived together for only two days after the marriage. The Court held that if an application is otherwise duly constituted and properly presented before the court, it is not the responsibility of the court to search for grounds or reasons which have compelled the parties to seek divorce by mutual consent.
In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the cooling-off period provided in Section 13-B(2) of the Hindu Marriage Act should be read as a directory provision and not mandatory. As the parties, in this case, had been living separately for eight years, there was no hope of them getting back together.
In Hitesh Bhatnagar v. Deepa Bhatnagar (2011), the Supreme Court held that if the second motion is not passed within eighteen months, the court is not bound to pass a decree of divorce by mutual consent. It also held that either party might withdraw their consent at any time before the decree is passed. In this case, it was held that unless both parties mutually agree on getting a divorce and convince the court regarding the same, the court will not grant the divorce.
VI)CONCLUSION–
Anna Quindlen, in her novel ‘Alternate Side,’ said, “When one of you wanted one life, and the other wanted something completely different, there was a technical term for that: irreconcilable.” Divorce is a tough decision that should be taken with the utmost care as it not only affects the people involved in the marriage but also the people related to them. But it cannot be held back if the marriage has reached a point where it is causing more pain than happiness. Therefore, divorce by mutual consent is a great way to end all that trauma, and the process for the same is made extremely uncomplicated by the legislature and judiciary to help people walk out of unhappy marriages without burdening them with more mental stress.
VII) REFERENCES–
1)https://legaldocs.co.in/mutual-consent-divorce
2)https://lawrato.com/indian-kanoon/divorce-law/divorce-by-mutual-consent-in-india-130
3)https://www.shreeyanshlegal.com/mutual-divorce/
4)www.legalserviceindia.com/legal/article-9771-how-to-take-divorce-by-mutual-consent-in-india.html
5)https://adjuvalegal.com/divorce/mutual-divorce-process-time/
6)https://blog.ipleaders.in/divorce-mutual-consent-hindu-marriage-act-1955-varying-judicial-response/
7)https://blog.ipleaders.in/mutual-consent-divorce/#:~:text=Section%2013(B)%20of%20the,the%20filing%20of%20the%20petition.
8)https://lc2.du.ac.in/DJCL2/10.Kusum%20lata%20Bawlia.pdf
9)https://www.scconline.com/blog/post/2021/05/14/judicial-separation/
10)https://www.legalserviceindia.com/legal/article-1594-divorce-by-mutual-consent.html
11)https://www.legalserviceindia.com/legal/article-1330-mutual-divorce-law-for-different-religions-in-india.html#:~:text=Mutual%20Divorce%20under%20Muslim%20Law%3A&text=Khula%20and%20Mubarat%20are%20the,as%20compensation)%20to%20the%20husband.
12)https://matrimonialadvocates.com/conditions-for-mutual-divorce/
13)https://nbassociates.net/mutual-divorce-process-in-christian-law-sec-10a-divorce-act/
14)https://nbassociates.net/mutual-divorce-process-in-parsi-law-sec-32b-pmda/