File Divorce By Mutual Consent

How to file divorce in India?

  • Criteria for divorce by mutual consent
  • Procedure of divorce filing
  • Important legislations
  • Divorce by NRI
  • Requirement/condition for divorce

Divorce by Mutual Consent is considered to be a straightforward way of dissolving the marriage. It releases the party from the hassles of contesting the divorce causing pain to both parties in addition to saving time and money for both parties. The parties here mutually agree to dissolve the marriage and file for a decree from the court. But it is important the right flowing emotions between the husband and wife must not blind the logic and no decision must be taken in without thinking twice about the dire consequences.

What Is Court Marriage And Who Can Perform The Same?

Under Court marriage parties can directly apply to the Marriage Registrar for performance & registration of marriage and grant of marriage certificate. Court marriage under Special Marriage Act, 1954 can be performed between an Indian male and a female/or between an Indian and a foreigner irrespective of their caste or religion.

A marriage between an Indian and a Foreign national can also be solemnized under Special Marriage Act, 1954, if either one of Bridegroom or bride is a citizen of India before Marriage Registrar in India or foreign country.

Important Legislations Under Which Mutual Consent Divorce Can Be Filed

  • Section 13B of the Hindu Marriage Act, 1955 (applicable to all Hindus, Jains, Sikhs) mandates a period of separation of 1 year ,
  • Section 28 of the Special Marriage Act, 1954 ( applicable to all marriages between parties belonging to different religions, castes, NRI’s etc) mandates a period of separation of more than one year,
  • Section 10 A of the Indian Divorce Act for Christian Couples mandates a period of separation of two years.

Points To Be Considered Before Filing Divorce By Mutual Consent

Before heading forward to file the petition for Divorce by Mutual Consent, it is advisable to mutually get certain things clarified between the parties by putting them in writing in order to avoid any future discrepancies. Since the divorce is amicable and mutually applied for by both parties, it is very essential to mutually decide upon solving issues pertaining to child custody, child maintenance, joint property, alimony, other joint assets, and many more. Since these issues emerge to be a hindrance for couples, it is advised to clearly document all the terms and conditions well in writing to safeguard against any dispute in the future.

Provisions Of Mutual Divorcee Under Hindu Marriage Act

Vide an amendment in 1976, Section 13B (1) was inserted by making divorce by mutual consent as legal provision under the Hindu Marriage Act 1955. As per Section 13B of the Hindu Marriage Act [2], 1955:

  • Subject to the provisions of this Act 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, whether such marriage was solemnised 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, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved
  • 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 eighteen 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 the decree.”

What Are The Services Advocate Amit Malik, Offers For Divorce By Mutual Consent?

Our services:

Our comprehensive range of end-to-end solutions includes following:

  • End to end services for divorce.
  • We have expertise in preparing to file divorce petition including drafting of the same.
  • We will get in touch with you renounced lawyers in this field.
  • Free consultation for any enquiry that you may have about divorce
  • Petition will be drafted by us and be duly submitted in the court.
  • We shall inform you of the date and time when your physical appearance will be required in court, if any.
  • We will inform you about day to day proceedings in the matter.
  • You will get your divorce done without any hassles.

Conditions For Filing Divorce By Mutual Consent

There are certain conditions/requirements that have to fulfil to seek divorce under Hindu Marriage Act which is as mentioned below:

  • Both the parties have been living separately for a period of at least one year (living separately has no connection with respect to living under safe roof)
  • Both the parties have not been able to live together, and
  • Both the parties have mutually agreed to the conclusion that marriage should be dissolve

Procedure To File Divorce By Mutual Consent?

  • Both husband and wife have to reach a consensus in terms of mutual divorce.
  • As per the discussion between the parties, a Divorcee Petition is carefully drafted by a Legal Attorney for Mutual Consent under Section 13B of the Hindu Marriage Act or Section 10A of the Indian Divorce Act or Section 28 of the Special Marriage Act, as per its applicability.
  • After completion of Drafting and other necessary formalities, Divorce Petition to be filed in the appropriate Court having jurisdiction.
  • Both the parties need to be present in the court for appearance as well as for recording statements as required after which the First Motion will be passed.
  • Where any party is unable to appear in person for recording statement due to any relevant reason, they can proceed through a Power of Attorney(POA) by authorizing someone from close family to appear on his behalf (in case of NRI or other reason)
  • The law provides the provision to provide a cooling period to the parties of a minimum 6 months which may extend up to 18 months with an aim to give them time to rethink and reconsider their decision. However, now vide the order of Hon’ble Supreme Court the said cooling period has been waivedoff/made it optional.
  • Afterward this The Second Motion is set up.
  • During the cooling period, before moving the second motion, the parties do have liberty to withdraw their consent for divorce.
  • If on the Second motion statements are recorded again and if court thinks/appears that the parties have been unable to resolve their differences, the Court will grant the Decree for Divorce.
  • If the court consider that/or on request of parties that there is a scope of any harmony/compromise between the parties, the court may set up another motion to record the statement of the parties.
  • If Divorce Decree has been passed with consent of both the parties then they can file an appeal in the higher court.

Jurisdiction For Filing The Divorce Petition

  • where the marriage was solemnized between the parties, or
  • where both wife and husband last resided together,or
  • where the wife is residing presently at the time of filing of the Divorce Petition, or
  • Where the husband is residing presently at the time of filing of the Divorce Petition.

Procedure For Filing Divorce By Non-Resident Indian Couple

An NRI couple as per their own wish can file a Divorce either in the foreign country where the couple currently inhabit or in India as well. Divorce Petition in foreign court to be passed as per laws/procedure followed in respective country.