INTRODUCTION
Divorce by Mutual Consent was brought by the Indian Parliament in the year 1976 vide amendment in the Hindu Marriage Act. Divorce by Mutual Consent is desirable to suggest to parties to understand the futility of Litigation which is a lot more time consuming to which Mutual Divorce has brought relief. Section 13B of Hindu Marriage Act, 1955 says that a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, if they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. The court after listening to both the parties as it thinks fit may pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
MEMORANDUM OF UNDERSTANDING
While taking the divorce by the way of Mutual Consent parties has to sign the Memorandum of Understanding (MOU) which is based on mutual Terms and Conditions of the parties on which they rely and agreed upon, thereafter signing the MOU parties can proceed with the divorce by Mutual Consent. MOU is a deed that makes it clear what conditions are to be fulfilled by both the parties to obtain the decree of Mutual Divorce. If any child is born from the wedlock then both the parties should decide who is going to have the custody of a child and the Visitation of another party as well, it is the agreement between the parties which prevails subject to the welfare of minor child/children. Parties can also have an understanding of Joint Custody or shared parenting in the process of Mutual Consent Divorce.
MOU also includes the aspect of Financial Settlement which includes Alimony, house, Joint Investment, Istridhan, Education Expenses, Maintenance, Joint Account, etc.
PLACE WHERE MUTUAL CONSENT DIVORCE CAN BE FILED
Petition of Mutual Consent Divorce can be filed at any of the following places:
1. Place where the marriage was Solemnized
2. Place where both the parties last resided together as Husband and Wife.
3. Place where a wife is residing at the time of filing the Petition.
RULES FOR THE MUTUAL CONSENT DIVORCE IN INDIA
Once the petition for the Divorce by the way of Mutual Consent is filed parties are required to present before the court to get their statement record. In any circumstances if any of the parties are not able to present in person before the court then such party can appear through the power of attorney who is preferable should be the family member of the party. After the statement is recorded it is commonly called First Motion has been granted. Accordingly, after the initial motion and the presentation of the petition for mutual divorce, the parties are required to file the Second motion. Section 13B of the Hindu Marriage Act itself provides for a cooling period of six months on the first motion being moved, in the event the parties changed their mind during the said period.
After the completion of the first motion, the parties are required to file the second motion for which they are called upon to wait for six months and this period is extendable to eighteen months. The period of six months cannot be taken as mandatory, because if it is mandatory the very purpose of the liberalized concept of divorce by mutual consent will be frustrated, especially when the parties have lived separately and there was no chance of a reunion. This period in Mutual consent divorce is generally called a cooling-off period where it is provided to the parties to rethink about saving their marriage again and this period is given for reconciliation.
Where both the parties have made up their mind that they are not at all willing to live together then the period of six months can be waived off by the concerned Court on filing an application for waiver of Six Months. Thereafter parties can file the second motion as soon as possible, the Court, after making such inquiry, as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with wisdom stipulated a cooling period of six months from the date of filing of a petition save the institution of marriage; Case: Devinder Singh Narula vs. Meenakshi Nagia.
As per the rules while signing the MOU where parties agree upon all the terms and condition with their free will and consent, whenever any party receives the amount from another party as per the MOU and after receiving the money party deny to divorce by the way of Mutual Consent then such party will be entitled to return the entire amount received with the interest not less than 2% which may increase on the discretion of the Court. On the other hand, the party which has given the money to another party wants to withdraw the mutual consent divorce without any valid reason then the other party has the right to forfeit the entire amount which is received as per its MOU.
