Divorce with Mutual Consent

Divorce with Mutual consent is one where both the partners want to have a divorce and agree to live their lives separately. According to this couple have already applied their minds and are ready to part ways as a couple on agreed terms and conditions.It is easy to get a mutual consent divorce and is a recommended alternative. This option can be opted when both partners agree that seeking a divorce is the only option and are willing to separate on cordial terms. As per section 13 B of Hindu marriage act 1954, a married couple should be living separately which does not mean living on different locations. It means that the couple should not be living as husband and wife during this time period. The duration of procedure for divorce under this provision varies from 6 to 18 months.

Essential Requirements for Mutual Divorce

As per Section 13-B of Hindu Marriage Act, 1955:

1. Both the partners must agree to it : Both partners should give their consent willingly and it should not be obtained by any force or under the influence of any person. If one of the partners withdraws its consent during the pendency of the petition then the divorce cannot be obtained by mutual consent.
2. Living separately for one year or more : The partners have to show that they had been living separately for at least six months. Living separately under this context means that they had not been living as husband and wife. Living separately is not in relation to the place of living but the intention to live separately. The parties may be living under one roof but not as husband and wife, then only they can apply for the divorce by mutual consent. They may be living in separate places but still as husband and wife by fulfilling matrimonial obligations in such case they cannot apply for the divorce by mutual consent.
3. Have not been able to live together : The couple has to prove that it is not possible for them to live with each other. Mere small fights or trivial causes cannot be the reason to obtain divorce by mutual consent.
4. Time period : When once the petition is filed, the court gives the time period of 6 to 18 months to reconsider their decision and come together after 6 months for the hearing of the case. But if they come after 18 months then the court will not consider their case as it presumes that they might have changed their decision of obtaining a divorce. If they now want a divorce they would have to file a fresh petition in the district court.
5. Confirmation by the Court : The Court makes sure that there is no fraud, use of force, coercion on any of the party for giving consent under such divorce and their marriage was a valid marriage.

Filing of petition of mutual consent divorce

As per Section 19 of Hindu Marriage Act, 1955 the petition of mutual consent divorce can be filed in the family court of district where:

• Marriage had taken place
• Husband and wife resided together
• Wife is residing at the time of filing the petition

Procedure of filing the petition and court procedure

• The petition is filed in the family court of district in the form of affidavit and the statement of both husband and wife is recorded. The matter is adjourned for the time span of six months.
• After the time of six months, both the parties have to present themselves before court with the confirmation of mutual consent which has been filed before. The divorce is not granted if the mutual consent is not confirmed in the second motion i.e. after six months. The decree of divorce is given after the second motion.

Withdrawal of the Mutual Consent Divorce petition

The provisions to withdraw mutual consent divorce petition is allowed by one spouse after filing in family court of district.

• During the time span of six months either of the spouse is authorized by the court to withdraw the mutual consent petition by filing an application asserting that he/she does not wish to pursue with mutual consent divorce.
• The court is obliged to not to grant divorce decree under such situation.

Remedy for the other spouse

The other spouse can file a normal case under Section 13 of Hindu Marriage Act, 1955 where the divorce can be granted on certain grounds like cruelty, conversion of religion, desertion, unsound mind, Leprosy, spouse missing or abandoned for more than seven years or sexual intercourse with another person.

Time span for final decree of divorce by mutual consent

It takes the time of six months to one year from the date of filing the petition and rest depends on case to case.

Validity of Divorce through Mutual Consent versus Settlement Outside Court:

It is a general practice in some areas where the parties themselves or through the Panchayat or with their elders enter into a compromise deed between the parties to get their marriage dissolved and to get separated.

But this compromise deed is not recognised as a valid mode of divorce in India unless such mutual agreement to get separated/ divorced is enforced through court proceedings u/s 13B of the Hindu Marriage Act, 1955.