Mutual Divorce in India [Everything you need to know]

Shreyash Mohta
What is Mutual Divorce? To start of with knowing about what mutual divorce is all about let us first understand what is mutual divorce and what exactly does it mean. Mutual Divorce is when both the spouses [Husband and Wife] agree that they are unable to live together and the best solution for them is to get separated by way of a divorce, decided by them mutually and both the parties have consented to the same. They then present a mutual divorce petition jointly before the honourable court, having jurisdiction, without putting any allegations on each other. For example, if a married couple have been living separately for a period of 1year or more and that they are unable to live any further, and they have come to a mutual conclusion that their marriage has totally collapsed and that in no way can this be mended or made good, they can be granted divorce. Research says that one of the fastest ways of being granted a divorce in India is through mutual consent as other options linger on for too long. The law says that all marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 can be annulled, provided the parties to marriage consent for the same in front of the court. What are the requisites for a Mutual Divorce? Now that we have understood the basic concept of mutual divorce let us also know what are the various requisites which need to be fulfilled in order to get a mutual divorce. The valid requisites are as follows: 1. The parties must be living separately for a period not less than one year. [It is immaterial whether the spouses have been living separately by force or by mutual consent. The parties just need to prove the condition of separate living under the same roof of the matrimonial home or in separate residence by the parties]. The court will not go beyond this statutory condition if this condition is satisfied. 2. The parties have failed to live together and that no reconciliation or adjustment is possible between them. 3. There is free consent from both the parties for the dissolution of such marriage. 4. The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred. What is the Process/Steps involved in a Mutual Divorce? The next thing which one needs to understand is that what is the process/steps that one needs to follow to get a mutual divorce. Given below are all the steps which one needs to follow to get a mutual divorce. There are several steps involved to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps: 1. Filing of a Joint Petition The first step involved is that of filing a joint petition in the respective Family Court. This joint petition is to be signed by both the parties. This petition shall contain a joint statement by both the partners stating that due to their non-reconcilable differences they are unable to stay together and as such divorce shall be granted to them. This petition shall also contain a statement to split the assets, custody of children etc. 2. Appearance of the Parties The second step is that both the parties who want divorce must present themselves after their mutual divorce petition has been filed in such family court which has the jurisdiction to try it. The date of appearance is fixed beforehand by the Ld. Family Court and the parties present themselves along with their Ld. Divorce Lawyer. 3. Scrutiny of the Petition by the Court The third step in the process is that the court will scrutinize the petition and the documents filed by the parties in respect to the divorce petition. If the court is satisfied, then, it will order for the recording of statements of the parties on Oath. However, in some cases the court may also try to bring a reconciliation between both the parties who have filed such divorce petition and when there is a failure to reconcile between the parties then, the court proceeds further with the divorce. 4. Recording of statement and passing of Order on the First Motion After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6-month period [Judicial Separation] is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion. 5. The Second Motion After 6 months of the first motion or by the end of the reconciliation period, if both parties still don't agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording of statements before the court. In a recent judgement, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. 6. Court’s Decision The most important requirement for a grant of divorce by mutual consent is the free consent of both the parties. In other words, unless there is complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and now the divorce becomes final. What are the advantages of a Mutual Divorce? Unlike a contested divorce matter a mutual divorce is a far better option as it has a lot of advantages than compared to a contested divorce. They are as follows: 1. Time Saving 2. Cost Effective 3. Hassle free 4. Speedy Disposal 5. No unnecessary quarrels 6. Just two hearings 7. No scene of Evidence/Cross Examination/Re-Examination 8. No allegation on each other hence no question of proving or disapproving it [which generally takes a lot of time] Where to file the Divorce case? 1. The parties are required to file for divorce in the family court of the city where both the partners lived together for the last time, i.e. their matrimonial home. OR, 2. It can even be presented in the court of the city/place where the marriage was solemnized. What are the documents or information that are needed for a Mutual Divorce? There are a lot of documents which are required for a Mutual Divorce. The complete list of those documents is given below. They are as follows: 1. Address proof of husband 2. Address proof of wife 3. Details of professions and present earnings 4. Certificate of Marriage 5. Family background information 6. Photographs of marriage between husband and wife 7. Evidence to prove that the husband and wife have been living separately for more than one year 8. Evidence proving failed attempts of reconciliation 9. Income tax statements of both the spouses [last 3 to 5years] 10. Details of property and assets of the parties Certain other documents may also be required, depending upon the facts and circumstances of the particular case. What is the total time taken to get a decree of divorce by mutual consent in India? The average time of [from the date of filing till getting the divorce decree can be around six months to two years]. However, it can take longer, depending upon the nature of the particular case. No set time can be stated as each case is different and independent of the other. Keeping that in mind, however, mutual divorce has been seen to be the least time taking as compared to all other procedures of divorce. Can a party withdraw the petition for Divorce? YES, during the six-month period or time gap between first motion and the second motion, either of the parties can withdraw by filing an application before the court, stating that they do not intend to get a divorce through mutual consent. In such a circumstance the other party would only have one option -to file for contested divorce. A contested divorce can be filed on any of the following grounds like, 1. Cruelty, 2. Desertion, 3. Voluntary sexual inter-course with another person, 4. Unsound mind, 5. Conversion of religion by the other spouse, 6. Leprosy, 7. Venereal disease, 8. Spouse having renounced the world or being missing for a period of more than 7 months. How can NRIs get a Mutual Divorce? In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the party currently resides. It is imperative that the decree by foreign courts should not be inconclusive of section 13 of the Civil Procedure Code, 1908. In fact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit for camera proceedings. What if, the mutual consent is obtained by force or coercion? It is the duty of the court to examine that the consent is not viciously obtained. If the court fails to determine whether the consent was given freely or not, then such a divorce decree cannot be regarded as a decree by mutual consent. In case the consent for mutual divorce is obtained through force or coercion, the aggrieved party can file an appeal to strike down such decree. Is the cooling-off period for six months mandatory? A bench of justice Adesh Kumar Goyal and UU Lalit in its order said that 'we are in the view that period of mentioned in section 13B (2) of Hindu Marriage Act is not mandatory but directory. It will be open to the court to exercise its discretion in the facts and circumstances of each case. Section 13B (2) of Hindu Marriage Act says, "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, that a marriage has been solemnised 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." The Supreme Court passed this judgement while hearing a case in which marriage between the parties took place on 16th January, 1994 at Delhi. Two children were born in 1995 and 2003 respectively. Since 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on April 28, 2017 a settlement was arrived at to resolve all the disputes and was decided to file divorce by mutual consent. How is the issue of maintenance and alimony tackled in Mutual Divorce matters? Alimony is an important aspect in matters of divorce proceedings. In cases of mutual divorce, the divorcing husband and the wife are required to agree on the sum of alimony or maintenance which will be given either by the husband to wife or wife to the husband as the case may be. While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration. In case the parties mutually agree that there is no requirement to pay any alimony, it is not compulsory for the parties to decide the quantum to be paid. No maximum or minimum amount of alimony has been set by law, hence, it is upon the parties to agree upon a particular sum. It is generally decided as a gross sum, or a monthly amount, not exceeding the life of the receiver, giving regard to the payer’s own property and income. How is child custody and support decided in Divorce matters? While obtaining a divorce through mutual consent, the parties are required to settle the issue of child custody. Custody of the child implies as to who the child will physically reside with. The custodial parent would be the primary caretaker and would thereby be responsible for the needs of the child. Both the parents are equally competent to take the custody of the children. However, in this kind of divorce, the parties need to mutually agree upon matters such as - who would have the physical custody of the child, the duration of visitation rights, the interim custody, how the child’s living and educational costs will be met, etc. The spouse can even opt for joint custody. Under this arrangement, one of the parents would be the primary caretaker and thus have the physical custody of the child, and both of them would have the legal custody of the child. The court regards the interest and welfare of the child as paramount considerations in matters of child custody. The court is the parens patriae i.e. the ultimate guardian of the child and hence the minor child’s property/income is protected by law. Moreover, the terms of custody, access and child support can be changed in case the circumstances are altered, or in the best interest of the child. How is Mutual Divorce settled in various other personal laws? To finish up with, let us discuss what and how do other personal laws think about Mutual Divorce and how do they handle the same, what are the provisions for Mutual Divorce in various other personal laws. The same is listed below: I. Mutual Divorce under Muslim Law: Under Muslim Law, there are two categories of divorce: 1. Judicial Divorce and 2. Extra-Judicial Divorce. Mutual Divorce under Muslim Law falls under the extra-judicial category. There are two kinds of divorce by mutual agreement called ‘khula’ and ‘mubarat’. Under both these kinds of mutual divorce, the woman is to part with her ‘dower’ or some other property. ‘Khula’ under Muslim Law is an agreement between the husband and wife for dissolving a union in lieu of compensation (part of her property) that is paid by the wife to her husband. Even though this consideration is important, the actual delivery of property is not a precondition for the validity of the divorce under ‘khula’ system. An irrevocable divorce takes place once the husband gives his consent, and the husband has no right to cancel the ‘khula’ on the ground that the consideration has not been paid. Under the ‘mubarat’ form of mutual divorce, both the parties must desire divorce, and thus the proposal for it can emanate from either wife or husband. Both these parties should be willing to separate. Once the offer is made, the other party must accept it, and once it is accepted, the divorce becomes irrevocable. Under the Sunnis, once the husband and wife enter into a ‘mubarat’, all the rights and obligations of the parties come to an end. In Shias, a proper form is imposed, i.e. the word ‘mubarat’ should be followed by the word ‘talaq’ for the divorce to take place. These words should be uttered in Arabic, and the intention to end the marriage should be expressed clearly. In both ‘Khula’ and ‘Mubarat’, the wife shall go through the ‘iddat’ period and in both, the divorce is an act of the parties and no intervention by the court is required. II. Mutual Divorce under Christian Law: Divorce for Christians in India is provided for under the Divorce Act, 1869. Section 10 A of the Act gives the provision for dissolution of marriage by mutual consent. A petition for mutual divorce can be presented by both the parties to the appropriate district court. The petition should be presented upon the grounds that the parties have been living separately for more than a year and that it is not possible for them to cohabit together and that the decision to dissolve the marriage has been mutually agreed upon. This petition can be withdrawn after the expiry of 6 months from the date of the presentation of the petition, but before a lapse of 18 months from this date. III. Mutual Divorce under Parsi Law: Provisions for marriage and divorce for Parsi’s in India is given in the Parsi Marriage and Divorce Act, 1936. Divorce by Mutual Consent is given under Section 32B. It states that both the husband and wife can together file for mutual divorce upon the ground that they have been living separately for a period of one year or more, and that they have not been able to live together. They have to mention that they mutually agree that the marriage should be dissolved. However, a suit under this section cannot be filed, unless one year has elapsed since the date of the marriage.