How to get Mutual Divorce under Christian Law? ईसाई कानून के तहत आपसी तलाक कैसे प्राप्त करें ? عیسائی قانون کے مطابق باہمی طلاق

Jesus (peace be upon him) described the relationship between the husband and wife in Matthew 19:6, “They are no longer two but one flesh” 

Holy Bible has given us the option of Divorce, only in case you think that further living with spouse will causes distress, pain and sufferings, and there is no other option except to divorce. However Divorce is the unpardonable sin and God hates Divorce.

Further Exodus 21:9-11 narrates, “A husband who reduced or didn’t provide food, clothing, and marital rights to his wife was required to let her go free. Wives couldn’t be demoted to concubine status or slave status. The husband only had two choices, Care for her properly or let her go"

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.

The Indian Divorce Act, 1869 regulates the law relating to Divorce of persons professing the Christian religion.

This Act is applied if one of the spouse is a Christian, and Section 10 of this Act provides the grounds on which a husband or wife may file a petition for dissolution of marriage.

    Further with an amendment in Indian Divorce Act in 2001, Section 10A was introduced, which provides for dissolution of marriage of a Christian married couple by Mutual Consent.

Section 10 A of the Indian Divorce Act,1869 has given legal right to a Christian married couple 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 Indian Divorce (Amendment) Act, 2001 on the ground that they have been living separately for a period of two 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.

    However, the Kerala High Court in the matter of Saumya Ann Thomas Versus The Union of India & Another,2010(1)KLT 869  held that the stipulation in Section 10A (1) of the Divorce Act, that the spouses must have been living separately for the period of two years or more is unconstitutional as the same violates the fundamental rights to equality and the right to life. The court further held that the “two year” period in the said provision shall be read down to a period of “One year”. Further this judgment is also certified by the Supreme Court of India.

    Hence a Christian couple can get Mutual Divorce Decree within a short period of time, and Contested Divorce takes long time to be decreed.

    However, 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 of Mutual Consent Divorce.

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

The procedures to get the Mutual Consent Divorce under Section 10A of the Indian Divorce Act, 1869 are similar to the provision mentioned in the Section 13 B of the Hindu Marriage Act, Section 32B of Parsi Marriage and Divorce Act, and Section 28 of the Special Marriage Act. 

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 Mutual consent Divorce then a signed and supported by affidavits petition will be filed 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.

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.

As per Supreme Court of India , the parties can request the Court to waive off this cooling period.

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, 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 an Appeal before the Higher Court is also 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