CONDITIONS FOR MUTUAL DIVORCE: (The article focuses on conditions of Mutual divorce under Hindu Marriage Act).
What is Mutual Divorce:
Divorce under various laws and customs ends the marital rights and obligations between the married couples, thus the marriage comes to an end. When Husband and wife both decide to end their marriage on a mutual understanding, they can seek divorce by mutual consent.
Under Hindu Marriage Act, which is applicable to Hindu, Buddhists, Jains or Sikhs, parties to a marriage can jointly present a petition before Family Court to get a decree of Divorce.
What are the conditions for Mutual divorce?
Section 13-B of the Hindu Marriage Act enables parties to a marriage to move to Family Court to get a decree of divorce by mutual consent. But before such petition can be filed there are certain conditions to be fulfilled as given in Section 13-B of the Hindu Marriage Act itself. The Essential pre-requisite to file mutual consent divorce petition are:-
A. Parties should be living separately for at least one yearThe Section 13-B of the Hindu marriage act itself provides that in order to mutually dissolve a marriage, the spouses should be living separately fo at-least 1 year before filling the divorce petition. This means that mutual divorce as per law cannot be filed when parties are living together and there has to be separation of one year. Here living separately would not mean that both parties should be living at different places. There may be separation when there is no cohabitation between husband and wife despite living under a same roof. (sushila devi Vs. Om Prakash).
B. Both Parties have failed to live together When the parties to a marriage, despite their best efforts and understanding could not continue to live together happily, there is no point that they shall be forced continue with such unhappy relationship. Thus, it is one of the conditions for mutual divorce that parties should failed to reconcile their
matrimonial dispute.
C. Mutual agreement to dissolve marriage: It is necessary that parties remain in agreement to dissolve their marriage throughout the mutual divorce proceedings in Court. which means that even after filling the initial first motion petition either party can withdraw his/her consent at the time of second motion. In that case the divorce on mutual consent cannot be granted by court. However, the party who withdraw the consent subsequently may be held liable to the contempt of Court of other penal consequence may ensue.
Procedure:
- Filling of the Divorce Petition (First Motion)
In order to initiate Mutual divorce proceedings, petition can be filed within the jurisdiction of the Court where:
a. Where the marriage was solemnized.
b. Where the husband and wife last resided together.
c. where the wife is currently residing. - Once both parties file a joint single petition before the court and present themselves along with their respective counsel (S). The concern Court scrutinise the petition as to whether the grounds (as mentioned above) are met out or not got grant decree of divorce. Here the Court may refer the parties to the cancelling cell (attached with the Concern Court) if it thinks that there are chances of reconciliations.
- If the Court is satisfised that all the requisite conditions are met out and there is no chance of parties living together, the Court direct the parties give their statements on oath.
- After recording of statement of both parties, the Court pass an order on first motion petition.
- After passing of the first motion order, both parties have to wait till 6 months and then (within 18 months of passing first motion order) they may again come to the court by filling the second motion petition. The Court again adopts the same process and then if all conditions are fulfilled it passes a final judgement and decree of divorce dissolving the marriage finally.
We, Matrimonial Advocates provide mutual divorce assistance and represent Court client in Courts all over Delhi. You may contact us at 93-105-25378
