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Mutual consent divorce

 Mutual Consent Divorce

The provisions for divorce by way of mutual consent are contained under Section 13 B of the Hindu Marriage Act. This article aims at providing information to the litigant/layman who is seeking information on the legal aspects of mutual consent divorce and also explains in detail the procedure involved in obtaining a decree of divorce by way of mutual consent.


How to file mutual consent divorce?

A joint petition by both husband and wife has to be filed under Section 13-B of Hindu Marriage Act before the Family Court having jurisdiction, seeking grant of decree of divorce by mutual consent.


Who can file a divorce by mutual consent?

Both the parties to the marriage i.e. the husband and wife can file a joint petition under Section 13-B of the Hindu Marriage Act for grant of decree of divorce by mutual consent. The conditions for filing divorce and getting a divorce by mutual consent are expressly mentioned in the act and reproduced herein below:


13B. Divorce by mutual consent.

Subject to the provisions of this Act 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 (68 of 1976), on the ground that they have been living separately for one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.’


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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized 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.


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What points to incorporate in the joint mutual consent divorce petition?

Best Divorce Lawyers should consider incorporating the following legal points while drafting a divorce petition:

The parties have completely separated from each other as they were unable to pull together on account of lack of understanding and temperamental differences between them. Several meetings have already taken place between the parties with the due intervention of common relatives, however, no fruitful results could be obtained

The marriage has now broken down irretrievably and irreparably.

The parties have not lived together as husband and wife for more than one year and since then they have been living separately.

The parties have voluntarily arrived at an amicable settlement resolving their disputes and deciding to part ways.

One-time settlement/agreement in full and final.

Nothing remains due about any item/Sridhar, maintenance-past present and future.

Mutually agreed by both the parties that if any complaint/case/application is pending before any competent court of law/competent authority, which is not in the knowledge of either of the parties or has escaped their attention shall also be withdrawn by them.

The consent for filing the present petition has not been obtained by the parties by force, fraud, inducement, or undue influence of any kind.

The petition has not been presented in collusion with the parties.



Where can a petition seeking mutual consent divorce be filed?

Jurisdiction of Court for filing Divorce Petition: Section 19 of the HMA contains provisions regarding the jurisdiction of the court where a petition for filing divorce can be presented.

19. Court to which petition shall be presented.-Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:

The marriage was solemnized, or

The respondent, at the time of the presentation of the petition, resides, or

The parties to the marriage last resided together, or

In case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]

The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for seven years or more by those persons who would naturally have heard of him if he were alive.1

The petition under Section 13 B can be presented before the Family Court of a district where either the marriage was solemnized, the parties to the marriage last resided together, or at the place where the wife is residing.


What are the Stages/ Procedure in Mutual Consent Divorce cases:

Steps involved before the filing of the petition:

Step 1: One-year separation period before the filing of the petition. However, in case of exceptional hardships, this period can be condoned by the court by moving appropriate applications.

 

Step 2: Drafting of a settlement agreement between husband and wife


Procedure/stages in Court proceedings:

Step 3: Filing of the joint petition under Section 13 B of the Hindu Marriage Act along with affidavits of both husband and wife.

 

Step 4: Recording of first motion statement

 

Step 5: Cooling off period of 6 months. (Application for waiving off this cooling period can be moved in certain cases)

 

Step 6: Recording of Second Motion statement

 

Step 7: Decree of Divorce

 


When can divorced persons remarry?

Section 15 of the Hindu Marriage Act expressly contains the provisions regarding remarriage.


The section is reproduced herein below:

15. Divorced persons when may marry again:

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.1


As per the provisions of this section, after obtaining the decree of divorce the parties can remarry after lapse of the limitation period for filing an appeal against the divorce decree and in a case where such appeal is filed, after the dismissal of such appeal. The limitation period for filing an appeal to High Court in divorce cases is 90 days from the date of decree or order.


Benefits of taking Divorce by way of Mutual Consent:

Parties do not get involved in unnecessary litigation;

Speedy and effective remedy;

Cost-effective and hassle-free litigation;

Autonomy on conditions for arriving at a settlement;

No bitterness and exploitation of parties to the litigation.

Bare Act source: The Hindu Marriage Act 1955
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