Detailed Procedure for divorce by mutual consent in India

What does divorce by mutual consent mean? Spouses seeking divorce by mutual consent can do so by first filing a petition in court. This can be done under Section 13-B of the Hindu Marriage Act, 1955. Under this provision, both the spouses give their consent for separating peacefully. Mutual Consent divorce offers a hassle-free way to come out of a marriage by getting it legally dissolved. The most important pre-requisite for obtaining divorce through this option is the mutual consent of both the spouses. Alimony/maintenance and child custody are the two factors regarding which both the spouses need to reach a consensus. The law mandates no minimum or maximum limit when it comes to the amount of maintenance. The amount could be anything or it could even be nothing at all. Child custody is also a major issue that needs to be effectively sorted by both parties involved. Under mutual consent divorce, child custody could be shared, exclusive or joint. It ultimately depends on the understanding the spouses have.

When can I file the mutual consent divorce? Those intending to dissolve their marriage must wait for a period of at least one year, starting from the day of marriage. Before presenting the petition for divorce, the spouses are required to show that they both have been living separately for one year or more. The fact that they have been unable to live together under the same roof as spouses also needs to be presented.

Where should I file the petition for divorce? The petition should be filed in the family court of the city/district where the individuals had last lived together as a couple. This is termed as a couple’s matrimonial home.

Do laws of divorce vary for different religions in India? Different religions in India gave different laws for divorce. Hindu couples (this includes Sikh, Buddhist and Jain couples as well) fall under Hindu Marriage Act, 1955. Christians follow Indian Divorce Act-1869 & The Indian Christian Marriage Act, 1872 for divorce proceedings. Muslims come under Personnel laws of Divorce as well as the Dissolution of Marriage Act, 1939 & The Muslim Women (Protection of Rights on Divorce) Act, 1986. Parsi couples are governed by The Parsi Marriage & Divorce Act-1936. There also exists a secular law known as the Special Marriage Act, 1954.

How does one file a divorce petition by mutual consent? What occurs in court after that? The petition for divorce has to be in the form of an affidavit. This affidavit should be submitted to the family court. Once the petition has been filed and the statements of the concerned parties have been recorded, the court usually adjourns the case for six months. After the six months end, the spouses are required to be present in court in order to make a second motion that will confirm the mutual consent which had been filed earlier. A decree of the divorce is granted only once the second motion is completed.

Can the mutual consent petition be withdrawn by a party after it has been filed in court? What is its result? Both the partners are entitled to withdraw the mutual consent during the six months when the petition stands pending in the court. This can be done by filing an application in court which states that he/she no longer wishes to divorce his/her partner by mutual consent. No decree of divorce is granted by the court in such a situation.

What can the other spouse do in such a situation? No option other than filing for a normal divorce petition under the provisions of the Section 13 of the Hindu Marriage Act, 1950 is available to the other partner in such a case. Certain grounds such as voluntary sexual inter-course with a person other than one’s spouse; cruelty; desertion; the other spouse having an unsound mind; ; Leprosy; venereal disease; conversion of religion by the other partner; a spouse having renounced the world or being missing for a period of more than 7 years, enable divorce to be granted in such a situation.

Is it possible for a spouse to remarry without first getting divorced from the current partner? Remarrying without getting divorced first counts as a punishable offense under which you can face imprisonment.

Should divorce be applicable in the event of either spouse being missing for a long period of time? If a spouse has been absent for a period of seven continuous years without having informed the other spouse about his/her whereabouts, a petition must be filed regarding this in court. Necessary proof should be produced in such a situation.

When can a divorced person remarry? If the person remarrying someone else does not receive a notice of appeal from the former partner within three months of the date of the decree, depending on the nature of decree they may marry another person once the three months end.

In case you can manage to file on your own, once the documentation has been done by us, the cost will be quite nominal. You will face no problem in filing your petition if you are guided by us and will also save a lot of money in the process.

How long does it take for the whole process to end; from filing the mutual consent petition in the court till the decree is passed by the court? Although it differs from case to case as well as place to place, it can take anywhere between six months to one year from the date the petition was filled.