Divorce procedure

DIVORCE BY MUTUAL CONSENT

Section 13B of the HMA Act 1955 provides for divorce by mutual consent. period of separation is 1 year)
Section 28 of the Special marriage Act, 1954 provides for divorce by mutual consent.
Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of separation is 2 years)

The Conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved.

Under these circumstances a Divorce by Mutual consent can be filed.

What is divorce by mutual consent?

Divorce By Mutual Consent is as the name suggests is when both parties ie husband and wife come to a mutual understanding that the marriage be dissolved amicably.

Mutual consent between Hindu couple

Mutual Consent Divorce between Hindu Couple is governed by The Hindu Marriage Act, 1955, under Section l3B.
Which states that.- A petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Secondly on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.

Mutual consent divorce in case of court marriage

Mutual Consent Divorce in case of Court marriage is governed by The Special Marriage Act, 1954 under Section 28.
Which states that.- A petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

Secondly on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to it in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

Procedure for Filing for Divorce

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconciliable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an enquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties.

However, not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such cases, one party files for divorce in the court, but the other contests it. This forms the case for the filing of a contested divorce. Some of the grounds on which either spouse can file for a divorce in India are:

  • Adultery on the part of the spouse of the petitioner, or any other sexual relationship outside marriage.
  • Willful desertion or abandonment of the petitioner by the spouse, for a continuous period of two years in India, before the date of the filing for divorce.
  • Infliction of physical and/or mental torture on the petitioner by the spouse, which may result in danger to life and health of the former.
  • Sexual impotency or inability to perform sexual intercourse by the spouse of the petitioner.
  • Insanity or suffering from incurable disease by the spouse of the petitioner.

The actual process of filing for divorce, however, begins with the hiring of a lawyer. The importance of having an efficient lawyer cannot be over-emphasized, if one is to get through the complexities of the legal system in India. So whether a person is filing for divorce or contesting one, he/she should see that the lawyer is not only well-versed with laws related to marriage and divorce under the relevant marriage act, but also has adequate experience in guiding his/her client to the best possible divorce deal from the court.

After the petitioner and his/her lawyer have decided on which grounds to file for divorce, a divorce petition is formally drafted and filed in the relevant court. The petitioner is required to provide his/her legal representative with photocopies of the following documents:

  • Income tax statements for the last 2-3 years
  • Details of the petitioner’s profession and present remuneration
  • Information related to family background of the petitioner
  • Details of properties and other assets owned by the petitioner

Here it may be mentioned that it is in the interest of the petitioner, to provide all details of his/her marriage to the lawyer. This will not only include facts related to when and where the petitioner and spouse got married, but also details on how problems cropped up in their marriage and the events that finally led to the petitioner seeking divorce. The more honest the petitioner is with the lawyer, the easier it will be for the latter to present a strong case for his/her client.

After the first petition for divorce has been filed, the petitioner can sign a “vakalatnama” is which a document giving the lawyer the authority to represent the petitioner in court. After the petition has been received by the court, it will send a notice and a copy of the petition to the estranged spouse of the petitioner, asking him/her to appear before the court on a specified date. From here on, the legal process of seeking a contested divorce will take its own course.

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