Divorce by Mutual Consent | Step-by-Step

By | May 24, 2020
Divorce by Mutual Consent

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Divorce by Mutual Consent | Overview

This article essentially deals with the concept of divorce by mutual consent and further gives a detailed account of the necessary procedures involved in obtaining a divorce by mutual consent. It would help those people who are unsure as to how to file for divorce by mutual consent or what the exact steps are.

I. Divorce by mutual consent – Meaning

To begin with, divorce by mutual consent is the most civilized way of termination of a marriage. When the couple came to the conclusion that their marriage came to an end, they can agree to terminate the marriage by mutual consent. It is much less complicated than the long-drawn litigation that follows when there is no consent from either husband or wife. It is the fastest, most painless and inexpensive way of termination of a marriage.

When there is nothing to fight about, the court only needs to sign off on the agreement the parties already made regarding property division, spousal and child support, and child visitation. A petition for a ‘mutual divorce’ can be filed if the married couples are facing difficulties and have decided to part their ways legally. Divorce can also be filed if the other party is not willing to get a divorce- this is called, ‘Contested Divorce’.

II. Statutes governing divorce by mutual consent

The procedure for divorce by mutual consent is regulated by different Acts. In case the couple was married under the Hindu Marriage Act, 1955, the rules for divorce set under this Act would apply. If the marriage was solemnised under the Special Marriage Act, 1954, then it would apply. All other divorces would be in accordance with the Divorce Act, 1869. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936.

The parties wanting mutual consent divorce may file a petition in a District Court under the respective Acts and the Court may grant them the decree for divorce. Proceedings before Panchayat will not affect the divorce, the parties have to get it processed through Matrimonial Courts.

A. Hindu Marriage Act, 1955

Section 13B of The Hindu Marriage Act, 1955 provides the provision for Divorce by Mutual Consent. It explains that if the parties that are living separately continuously for a period of one year and parties are not able to live together and have agreed to separate mutually then they can seek divorce by mutual consent.

Section 13B, Hindu Marriage Act, 1955: Divorce by Mutual Consent 

This provision was inserted by Marriage Law (Amendment) Act,1976 and was not originally made by the Hindu Marriage Act. Section 13B of the Hindu Marriage Act,1955 is on the same ground on which Section 28 of the Special Marriage Act,1954 is. This provision is retrospective as well as prospective from the commencement, which means that the parties whose marriage is solemnized before or after the Amending Act can seek the help of this provision in order to get a divorce. Section 13B (1) of The Hindu Marriage Act, 1955 reads as follows,

“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 a marriage together, whether such marriage was solemnised 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 a period of 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.

Essentials of this clause

  1. The parties can seek divorce by mutual consent by filing a joint petition in a district court.
  2. Grounds for filing the petition:
  • They have been living separately for a period of one year or more, or
  • They have not been able to live together, and
  • They have mutually agreed for the divorce and terminate their marital relationship.

In Sureshta Devi v. Om Prakash [1]the court clarified the expression ‘living separately’ as follows,

The period of living separately for one year must be immediately preceding the presentation of petition. The expression living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations.

Section 13B (2) reads as follows,

“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 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.”

According to this clause, the court is bound to pass a decree of divorce if the following conditions are met:

  1. The parties should together make a step forward to the court after a duration of six months from the date of filing of the petition and not later than eighteen months.
  2. The petition should not be withdrawn by either party at any time before passing the decree.
  3. After that, the court may go through the case, and if the court thinks that all the facts are true then it can pass a decree of divorce.

In Suman v. Surendra Kumar[2] the court held that,

 “The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts.”

Further in Sureshta Devi v. Om Prakash the court held that,

 “Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality.”

B. The Muslim Women (Protection on Divorce) Act, 1986 and Personal Laws

According to The Muslim Women(Protection on Divorce) Act, 1986 and Personal Laws, Muslims can seek Divorce by mutual consent. There are two types of divorce by mutual consent in Muslim Personal Laws:

  1. Khula
  2. Mubarat

Divorce by Mubarat is very close to the provision of Divorce by Mutual Consent under:

  1. Section 24, Special Marriage Act, 1954
  2. Section 13B, Hindu Marriage Act,1955.

Khula (At the Request of Wife)

It also means that the husband lays down his right and authority over his wife. The wife proposes the husband for dissolution of marriage and she can do this by providing some kind of consideration to him. This may be by giving up her dower or something else. This totally depends on the wife that she provides the consideration or not. So this type of divorce starts from wife and husband can’t refuse it, but he can do negotiations related to the consideration.

As soon as the proposal is accepted by the husband the marriage is dissolved, even if the payment for consideration is on a later date.

Mubarat (Mutual Release)

In this case, both husband and wife are willing to dissolve the marriage. So the offer of separation can come from either the husband or wife’s side.

Legal Consequences of Khula and Mubarat

The effects are similar to that of divorce by any other method. The wife needs to undergo the period of iddat and husband has to maintain her during that period. After the completion of the period, marriage dissolves.

Difference between Khula and Mubarat

                          Khula                           Mubarat 
Redemption of the contract of marriage.Mutual release from the marriage.
Wife gives the offer and husband accepts it with free consent.Either the husband or wife can make the offer and the other party can accept it.
Consideration is given by the wife after negotiation with husband.There is no consideration involved.
Dislike is from the wife’s side.Mutual dislike.

C. The Indian Christian Marriage Act, 1872

The provision of the Indian Divorce Act,1869 is applied to the Christain marriage in India. Section 10A introduced by the 2001 Amendment now allows all marriages whether solemnized before or after such amendment to be dissolved by mutual consent provided that the parties to such marriage have been living apart for at least 2 years.

The difference in the period of separation for Christian spouses with spouses of other religious denominations is patently arbitrary and violative of Arts. 14 and 15 since the distinction is on the basis of religion only.

A Division Bench of the High Court of Kerala in Saumya Ann Thomas[3], has so held and has, in addition, found the provision to be violative of Art. 21 as it was unreasonable and oppressive.

The section has been read down by the Court by substituting a period of one year of separation to bring it in conformity with the provisions of other laws and thereby avoided the vice of unconstitutionality.
Therefore, although the matter is pending decision before the Supreme Court, as matters now stand s. 10A must be read as if the mandatory period of separation prior to a petition for divorce by mutual consent is one year instead of two.

D. The Parsi Marriage and Divorce Act 1936

It provides that whether the marriage is solemnized before or after the commencement of the Parsi Marriage and Divorce (Amendment) Act, 1988 they can file for divorce by mutual consent. Their marriage can be dissolved under Section 32B  of this Act. Under Section 32B both the parties can file for divorce by mutual consent. The suit cannot be filed unless the period of one year has expired from the date of marriage. If the court is satisfied from the facts and circumstances of the case, the Court can grant the decree for divorce.

E. The Special Marriage Act, 1954

The divorce by mutual consent is filed under Section 28 of the Special Marriage Act, 1954 in case of court marriage (solemnized under Special Marriage Act). This is similar to divorce by mutual consent as provided in Section 13B of Hindu Marriage Act, 1955.

III. Step by Step procedure to file for a Mutual Divorce

Step 1: Petition to File for a Divorce

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage. A joint petition has to be filed by both the parties for dissolution of marriage to seek a decree for divorce. Both parties in a mutual consent divorce would have to come to an agreement about alimony, child custody, maintenance, property, and so on. Therefore, a comprehensive agreement among the parties is required for the marriage to be dissolved.

The Husband & Wife have to reach to consensus in the following criteria and submit it along with the petition.

  1. Custody of Child: While obtaining a divorce through mutual consent the parties are required to decide who will get custody of the child/children, or if custody of the child/children is to be shared. Either arrangement will be agreed to by the court, so long as it’s been mutually agreed to. The spouse can opt for joint custody. Under this arrangement, one of the parents has the physical custody of the children and both of them have legal custody of the child.
  2. Alimony: The money that will be given to the wife by the husband or the husband by the wife must be decided by the parties themselves. The money can be a lump-sum amount or periodical payments.
  3. Return of Items: In the course of a marriage, much is interchanged. Both parties may invest in a property that is only in the name of one spouse; the jewellery of the wife may be in the possession of the husband. For a divorce to be mutual, all of this needs to be submitted independent of the courts.
  4. Litigation expenses: The parties must themselves decide how litigation expenses should be divided. If one spouse is dependent on the other financially, this would be particularly important.

If they fail to attach any of the above-mentioned stuff during filing of the petition, it can be added in the proof affidavit during the trial.

The petition is to be presented to the Family Court duly signed by both the parties. The spouses have to present the petition on the grounds that, they both are living separately for a consecutive period of one year or more before the presentation of the petition for divorce during this period of separation they have not been able to live together as husband and wife.

The divorce petition can be filed at one of the following places:

  1. Where the couple last resided.
  2. Where the marriage was solemnized
  3. Where the wife currently resides.

If anyone of the party is not available then any family member of such party can file the same on his/her behalf. After this, the ‘First Motion’ is established.

The court will give the date for pleading after a period of six months but the period will not be more than eighteen months. The time period after six months and before the completion of eighteen months is known as the cooling-off period. If the party doesn’t take action on a given date or if the parties pull back the case then the petition stands cancelled.

Documents required

The papers that are required along with the petition are:

  1. Address proof of husband and wife i.e. Aadhaar Card/Passport/Electricity Bill/Ration Card (either one of them)
  2. Wedding Card
  3. Marriage Photograph
  4. Marriage certificate
  5. 4 Passport-sized photographs
  6. Details of assets owned by husband and wife, both jointly and individually
  7. Income tax returns filed for a period of three years.
  8. Evidence proving separation for over a year
  9. Evidence proving failed reconciliation attempts

This is an exhaustive list and depends on the grounds of filing the divorce petition.

Step 2: Appearing Before Court and Inspection of the Petition

The parties have to be represented by their respective lawyers on the date given by the Family Court. The court will first try to bring reconciliation between the parties. But if it fails then the court will move further with the petition for divorce. In most cases, parties are required to be present before the court during the first and second motion.

Only in rare cases, camera proceedings may be allowed where the courts are convinced that the attendance of the party in question cannot be arranged by all possible means and it is totally on the discretion of the court to allow it.

Step 3: Recording of Statements on Oath and granting First motion

After the petition is examined by the court and the court is satisfied by it, then Court can order that the party’s statement be recorded on oath. After the recording of the statement, the court passes an order on the first motion.

Step 4: Cooling-off Period

The couple is expected to attempt reconciliation during the ensuing six to eighteen months before they file the second motion, at which point the divorce will be granted. Therefore, the couple must wait at least six months before they can approach the courts once again with the second motion. If either the husband or wife declares to the court that the other was un-cooperative in reconciling, the court may disallow divorce with mutual consent.

Before the ending of eighteen months from the date of presentation of divorce petition in the Family Court, the second motion is filed. If the eighteen months period is over the parties has to file a new petition.

In Hitesh Narendra Doshi v. Jesal Hitesh Joshi[4], it was held that the provision of six months was given for a specific purpose. The purpose behind this provision is that in the period of six months the parties can give time to each other, think about it once again, introspect about it and reconcile.

The 6 months period given to the parties can be waived off at the discretion of the court.

The Supreme Court in Amardeep Singh v. Harveen Kaur[5] held that,

Section 13B (2) was not mandatory but directory in nature. The concerned court could waive off 6 months period after being satisfied that the parties were living separately for more than a year with no chance of reconciliation and further waiting period would only prolong their agony.”

It also said that the parties can file waiver application just one week after the divorce petition is filed and the court would take a call on waiving of the period.

Step 5: Second Motion and the Final Hearing of Petition

The parties appear and record statements before the Family Court, once they decided to go ahead with the proceedings and appears for the second motion. In the final hearing, the parties need to be present in the court.

Step 6: Final Decree of Divorce

After the trial if the court is convinced about the truthfulness of what has been alleged in the petition and that there isn’t an iota of the probability of reconciliation or cohabitation, the courts would then pass a decree of divorce making the divorce final and declaring the marriage as dissolved according to the facts and situations of the case. The decree of divorce comes to effect from the date of the decree. The divorce becomes final once the decree of divorce is obtained by the court.

IV. Mutual Divorce is Non-Appealable:

Once the Court Grants a Divorce Decree in Mutual Consent it cannot be Challenged nor can you file for appeal in Higher Court Challenging the Decree at a later date, It is the Final Order and nothing can change it. This is because Mutual Divorce is a Consenting Decree of Divorce.

However, as per the Hindu Marriage Act, Section- 23(1)(bb) the court is required to be satisfied that the consent for divorce under Section- 13-B is not obtained by force, fraud or undue influence. It is the duty of the court to figure out if the consent is obtained freely or under coercion. The option of appeal is available against the decree as there may be situations where the court may have failed to see that the consent was not given freely.

Unilateral withdrawal of consent:

If one party changes its mind and wants to save his/her marriage then that party can file an application before the Court where their proceeding for divorce is going on, stating that he/she wants to withdraw his/her consent for the divorce as he/she wants to give a second chance to their marriage. In case if both husband and wife agree to the withdrawal then both can withdraw the case mutually and the court can dismiss such petition.

In the case of Sureshta Devi v. Om Prakash[6], the court held that

“Unless and until the decree of divorce is passed the mutuality of consent should be there. The purpose of giving a time span of six months is that there can be chances if the parties want to change their mind. It is not necessary that both parties change their mind. It can be done by one party also.”

Later in the case of Ashok Hurra v. Rupa Ashok,[7] the court said that,

 “The mutual consent should continue till the passing of the decree of divorce, even if the consent is not withdrawn by one of the parties during the time span of eighteen months.”

What can the other partner do under such circumstances?

There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of Section 13 of the Hindu Marriage Act, 1950.

In such a situation divorce can be granted only on certain specified grounds like cruelty; desertion; voluntary sexual intercourse with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.

Whether mere silence at the second stage would amount to withdrawal?

In Anil Kumar Jain v. Maya Jain[8], the court said that the consent for divorce was continuing if the party who is withdrawing the consent does not communicate it to the court either himself or by his/her counsel.

Also in the case of Suman vs. Surendra Kumar[9], husband after filing the joint petition for divorce did not turn up at the second stage. The Family Court held that mere silence would not amount to a withdrawal of the consent as one party himself left the matter. In such cases, it should be considered in the favour of consent instead of the absence of consent.

Usually, the proceeding will go on until a minimum of six months to one year depending from case to case. In some cases, if the matter is very serious than it can extend up to two years till ten years or more as the case may be.


References:

  1. Kusum, Family Law Lectures (2nd, Lexis Nexis Butterworths Wadhwa, Nagpur 2007) 161
  2. Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008) 525
  3. Dinshah Fardunji Mulla& Satyajeet Atul Desai, Hindu law (LexisNexis 2013)

[1] AIR 1992 SC 1904.

[2] AIR 2003 Raj 155.

[3] (2010): ILR, Ker, 1

[4] 2000 (3) ALD 81

[5] 2017 (8) SCC 746

[6] AIR 1992 SC 1904

[7] AIR 2002 SC 177

[8] AIR 2010 SC 229

[9] AIR 2003 Raj 155


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  • Beautee Begum says:

    Great job, It’s very helpful