Mutual Divorce or Mutual
Consent Divorce is a kind of Divorce, where husband and wife mutually
agree to end their marriage, and also decide the terms and conditions of
divorce amicably, and further they file a Mutual Divorce petition jointly
before the family court to get the Decree of Divorce.
Mutual
Consent Divorce procedure was passed in 1976 by the Parliament of India
after amending the Hindu Marriage Act.
Section 13B of the Hindu
Marriage Act, 1955 provides the provisions of Mutual Consent Divorce for
Hindus, Jains, Buddhists, and Sikhs.
Section 13B (1) of the
Hindu Marriage Act, 1955 has given legal right to the husband and wife to
dissolve their marriage by a decree of divorce after filing a mutual petition,
whether such marriage was solemnized before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 on the ground that they have been living
separately for a period of one year or more, and both are not able to live
together as husband and wife, and both have mutually agreed that the marriage
should be dissolved.
You can get the Mutual
divorce decree within a short period of time; otherwise a contested divorce
takes long time to be decreed.
Before filing the Mutual
Divorce Petition , both parties should settle the disputes relating to
Alimony/Maintenance, Child Custody and Settlement of property and assets
amicably.
An agreement /MOU can be
executed by both the parties after giving details of settlement and it can be
filed with the joint petition.
Conditions for Mutual
Divorce
💔Husband
and wife must living separately for a period of not less than one year
💔There
should be no chances of reconciliation and no possibility to continue the
matrimonial tied at all between Husband and wife.
💔There
must be no coercion, fraud or undue influence between the parties , and both
parties should be agreed and ready to give their free consent for the
dissolution of marriage.
💔Both
parties are agreed to end their matrimonial all disputes and ready to withdraw
the cases /compliant filed by them.
Procedure to get the
Mutual Consent Divorce
Filing a Joint Petition
Filing a joint petition by
both the parties is first steps of mutual divorce.
If you wanted to end your
marriage by way of a Decree of Mutual consent Divorce then a signed Joint
Petition with affidavits shall file before the family Court of law.
This Joint petition should
clearly mention that due to our irreconcilable differences we cannot live
together as husband and wife and are living separately for a period of one
year, and therefore giving our respective statement to end the marriage by a
decree of divorce.
Appearance of both
parties before the family Court
After filing the Joint
petition for mutual divorce, both parties have to appear before the family
Court to give their respective consent that ,we have filed this petition with
our free consent and have prayed for a decree of divorce on the mutual ground.
The said Family Court after
scrutinizes the joint petition and the supporting documents filed by both of
you , and after satisfies may order for recording the statements of both the
parties on oath.
Recording the Statement
and passing the order of First Motion
When the statements of both
the parties are recorded before the Court, then an order on the First Motion is
passed.
Actually, First
Motion is the first step in obtaining the Divorce on the ground of
Mutual consent.
After passing the order on
First Motion, a six months period is given by the Court to both the parties for
filing the Second Motion.
This six months waiting
period is called Cooling-off period, and the parties can request the Court to
waive off this cooling period.
Supreme Court of India, in
the matter of Amardeep Singh Versus Harveen Kaur (2017) 8 SCC 746 declared
that, It is not compulsory to wait/cool off 6 months as proposed under section
13B (2) of the Hindu Marriage Act and the Court can grant divorce after waiving
of 6 months waiting period on being satisfied that all efforts of conciliation
have been futile.
The maximum period to file
the Second Motion is 18 months from the date of First Motion.
If the Second motion is not
filed within a maximum period of 18 months, then the order of First Motion will
be cancelled.
Further, either of the
parties can withdraw their consent during this 6 months cooling period.
Recording the Statement
and passing the order of Second Motion
If during the period of 6
months, the parties are not ready to live together and wanted to end their
relation of husband and wife, then they have to appear before the family Court
for recording their statements on oath for final hearing after filing again a
joint petition of Second Motion.
Decision of the Court for
passing Decree of Divorce
After recording the
statement of both the parties in the Second Motion, and after satisfying that
there cannot be any possibility of reconciliation and cohabitation, Court will
pass a Decree of Divorce for dissolving the marriage.
Mutual Divorce Decree is final
order and cannot be challenged , and also an Appeal before the Higher Court is
not maintainable.
Jurisdiction to file the
Mutual Divorce Petition
👉The place
of solemnization of marriage
👉The
place, where the wife or husband is residing presently
👉The place
where husband and wife last resided i.e. city of matrimonial home
👉If both
the parties are residing abroad, then they can the file Mutual Divorce Petition
in the country where they are residing presently, and the Decree of Divorce
granted by the Foreign Court is valid in India.
Documents required for
filing the Mutual Divorce Petition
👉Address
proof of husband and wife
👉Marriage
Certificate
👉Marriage
photographs
👉Four
passport size photograph
👉Evidence of living separately for one year
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