Laws & Legal Procedure for Divorce by Mutual Consent

Recently, there has been a rise in the divorce cases filed in India. The coronavirus outbreak has affected the personal lives of individuals by taking its toll on strained couples. Law firms and advocates have reported numerous complaints of couples who want to split-up. This article discusses the laws and the legal procedure that governs Divorce by Mutual Consent.

Before 1976, the Special Marriage Act was the only Indian statute that dealt with the provisions of divorce by mutual consent. Two adults married or registered under this act could get their marriage dissolved by mutual consent. Various provisions in India explain divorce by mutual consent under different statutes. Divorce by mutual consent is dealt with Parsi law under the Parsi Marriage and Divorce Act, 1936, Indian Divorce (Amendment) Act, 2001 under Christian law, Hindu Marriage Act,1955 also provides for divorce by mutual consent under Hindu Law. There is no statutory provision in Muslim Law that deals with divorce by mutual consent but, accepts in the form of Khula and Mubarat.

But what do you understand by the term Divorce by Mutual Consent ?
Divorce by mutual consent takes place when both, husband and wife want to dissolve their marriage or to get separate from their own will. In this case, either of them can apply for the divorce.

Hindu Marriage Act, 1955
By virtue of section 13B of the Hindu Marriage Act,1955 the husband and wife can seek divorce by mutual consent. However, certain conditions need to be followed before granting divorce by mutual consent. They are-
• The husband and wife have been staying living separately for a period of a minimum of one year.
• They have been unable to live together anymore.
• Both husband and wife have mutually agreed upon for the divorce.

This section talks about a condition in which, the parties have to live separately for a minimum period of one year before the filing of the petition, but the question arises can this period be waived off. In the case of Mamta Rani v. Bhupesh Verma (AIR 2009 P&H 186) parties were not living together i.e., from five months after marriage. They were short of 6 months when they filed the petition for divorce by mutual consent. The trial court rejected the petition. However, the High Court observed that since all the other conditions stipulated in the Act are satisfied, there is no point in making the parties wait for another six months when all other issues are settled between them.

However, Delhi High Court took another view in the case of Ms. Urvashi Sibal v. Govt. of NCT of Delhi (AIR 2010 Del 157) and held that, separation for one year is a requirement under section 13B(1) of the Act, whereas under section 14, the court has the power to condone the statutory period of one year. Therefore, under no circumstances section 14 be invoked in proceedings initiated under section 13B of the Act. Court also further pointed out that only the Supreme Court has the power to exercise special jurisdiction under article 142 of the Constitution.

In a petition for divorce by mutual consent, the parties are given a waiting period of 6 months, also known as a cooling period which may extend up to 18 months. In the case of Hitesh Bhatnagar v. Deepa Bhatnagar (AIR 2011 SC 1637) court observed that if the second motion for divorce by mutual consent is not filed within 18 months, the court is not bound to pass an order or a decree of divorce.

In Pradeep Pant & anr. v. Govt. of NCT Delhi (2012 129 DRJ 674) court held that the parties will be given 6 months( extendable to 18 months) colling period to introspect their decision for divorce, if the parties are still unable to live together, then the divorce petition shall be passed by the district judge.

Parsi Marriage and Divorce Act, 1936
By virtue of section 32B of the Parsi Marriage and Divorce Act, 1936, either of the husband and wife can file the petition for divorce by mutual consent. Parties filing for the divorce must have been living separately for one year or more and are unable to live together anymore. This petition can only be filed if, on the date of the filing of the suit one year has elapsed since the date of the marriage. Also if the parties are consenting parties and consent of either party to the suit was not obtained by force or fraud, then a decree can be passed declaring the marriage to be dissolved.
It is significant to note that, Parsi Marriage and Divorce Act, 1936 does not provide for a gap between the filing of the petition and the second motion.

Indian Divorce (Amendment) Act, 2001
Under section 10A of the Indian Divorce (Amendment) Act, 2001, marriage could be dissolved between the parties, if the petition has been filed with mutual consent by both the parties, the parties have been living separately for 2 years and are unable to live together anymore. It is also mentioned in the section that, within 6 months of the date of filing of the petition, the court will not pass a decree, court has given an option to withdraw the petition from 6 months to 8 months, and the court will only pass a final decree after 8 months of the filing of the petition.

In the case of Saumya Ann Thomas v. UOI (ILR 2010(1) Kerala 805) the period of separation required for filing of the divorce petition by mutual consent i.e., 2 years was challenged in the court of law, as being arbitrary and ultra vires of article 14 and 21 of the Indian Constitution. Court applied the rule of severability and held that the period of two years is unconstitutional and can be read down to one year. The same was held in another case from Karnataka High Court, however, this ruling applies to those two states only, and Christians residing in other states cannot take the benefit of these verdicts. A petition was filed before the Supreme Court seeking direction to the Central Government to amend the law and bring it at par with other personal law statutes. However, no amendment has been so far made in the law.

Important issues to be settled before filing the divorce petition
• Child Custody: If there’s a question, as to whom the child custody would be granted after divorce. This issue must be discussed between the husband and wife before filing the divorce petition in a family court.

• Alumni/Maintenance: If one of either spouse is unable to meet his/her daily expenses then, the other spouse needs to pay him/her a certain sum of the amount required for his/her maintenance. A mutual understanding should be there between the partners(husband and wife) regarding the maintenance amount.

• Settlement of Property and Assets: Settling the ownership rights of property and asset like movable or immovable properties, bank accounts between the parties(Husband and wife)

Legal Procedure to be followed for filing the petition of divorce by mutual consent
• Filing of the Petition in the Family Court: A divorce petition has to be signed by both the husband and wife and filed after at least a year of having lived separately in a family court.

• First Motion for Divorce: After the petition has been accepted in the court, both the parties are called for their statements and the first motion is said to have been passed and a waiting period of 6 months will be given to the parties before they can file for the second motion.

• Second Motion hearing and Final Decree: In the second motion, the final hearing takes place and when the court is satisfied, the court passes a decree of divorce declaring the marriage to be dissolved.

Documents required for filing a Petition for Divorce by Mutual Consent • Marriage Certificate.
• Address Proof – Husband and Wife.
• Four Photographs of Marriage.
• IT Statement for the last 3 years.
• Complete information of profession and Income (Salary slips, appointment letter).
• Complete information of Property and Asset owned.
• Details about family (husband and wife).
• Proof of Staying separately for a year.
• Proof relating to the failed attempts of reconciliation.
Authored By: Adv. Anant Sharma & Aditi Bhawsar