Introduction

Divorce by mutual consent is a legal process of separation after marriage, when both the parties (husband and wife) wants to separate with their own will and terminate the discharge of marital obligations towards each other.

Various legislations containing the provision for divorce by mutual consent in India

  1. Divorce laws for Hindus including Sikhs, Jains and Buddhists are provided under the Hindu Marriage Act, 1955 (Section 13)
  2. Divorce laws for Christians are governed under the Indian Divorce Act, 1869 (Section 10 A)
  3. Divorce laws for Muslims are governed under their personal laws of Divorce and Dissolution of Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986.
  4. Divorce laws for all the inter-religion marriages are governed under a secular law i.e. the Special Marriage Act, 1954. (Section 28)
  5. The Parsi Marriage and Divorce Act, 1936.

Minimum Conditions to be fulfilled for obtaining divorce by mutual consent.

Discussing the divorce by mutual consent at length under  Section 13 of the Hindu Marriage Act, 1955, the minimum requirements that should be followed for obtaining a divorce by mutual consent.

  1. The petition must be presented to the court jointly by both the parties containing the agreement between the parties in respect of the following :-
  3. a. Child Custody – Which partner will get the child custody after divorce.
    1. Alimony/ Maintenance – The final arrangement of exchange of monetary benefits between the parties that can be of recurring nature or a one time payment in lumpsum or payable in installments.
    1. Settlement of Property and Assets – Settling the ownership rights of property and asset between the parties(Husband and wife).
  • The court hearing after filing the petition should also be attended by both the parties.
  • The husband and wife must have been living separately for at least 1 year from each other.
  • All the possibilities of settlement/ conciliation and resolution of differences have been exhausted and parties are unable to live together.
  • The parties should be acting out of their own free will and consent which is free from any kind of coercion have decided to get the divorce by mutual consent.

Duration / Time involved in a divorce by mutual consent.

As per law, before filing a joint petition for divorce by mutual consent the parties are required to live separately for 1 year. After the minimum time period of separation, the parties can approach the Family Court for getting the divorce and record statement for first motion under Section 13B (1) of Hindu Marriage Act, 1955.

After recording of the statement under Section 13 B(1) the parties are given a cooling off period of 6 months to re think and revisit their decision to proceed with the divorce. After the elapse of the cooling off period, the parties can file for second motion under Section 13 B(2), if they stick to their decision of getting separated.

The second motion can be filed anytime within 18 months from the date of first motion.

The Hon’ble Supreme Court in 2017 held that the minimum cooling off period of six months can be relaxed by the trial court in certain situations and the estranged couple, who are seeking divorce with mutual consent, can file waiver application after a week of filing the first motion.[1]

[1] The judgment came in 2017 where the couple was living separately for a period of 8 years before filing the petition.