How to get Mutual Consent Divorce? आपसी सहमति से तलाक कैसे लें? I باہمی طلاق کیسے حاصل کی جائے؟

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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