Prior to the Hindu Marriage Act, 1955, the notion of marriage under Hindu law differed from that of other religions to the extent of being considered as a sacrament. The concept of divorce was almost non-existent as the marital ties between a husband and wife were considered sacred.
Manu declared that a wife could not be released from her husband either by sale or by abandonment, implying that the marital tie cannot be severed in any way. However, with time and societal changes, this notion changed and divorce was recognised under Hindu law.
The Hindu Marriage Act, under Section 13B , recognizes the principle of divorce by mutual consent. This provision, apart from recognising also lays down the conditions that must be fulfilled to file a mutual consent divorce in India. A divorce attorney in India can assist you in determining whether you fulfil the criteria of mutual consent divorce or not.
Conditions for Mutual Consent Divorce
Section 13B of the Hindu Marriage Act, 1955 lays down certain conditions under which a petition for mutual consent divorce can be filed. It is important to talk to top divorce advocates in India before filing for divorce to make sure that you fulfil these conditions. The conditions to get a mutual consent divorce in India are as follows:
The husband and wife must be living separately.
They must be living separately for a period of at least 1 year.
They must have mutually agreed that the marriage should be dissolved.
The provision means that the husband and wife intending to dissolve marriage must wait for at least one year from the date of marriage to file for a divorce by mutual consent. They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been living together as husband and wife.
The divorce attorney files the divorce petition along with other necessary documents like the marriage certificate, income and property details of both spouses, requisite affidavits, etc.
Mutual Consent Divorce under Islamic Laws
Islamic law in India recognises the institution of marriage as a contract. It places a lot of importance on the institution as a means to maintain a peaceful and orderly social life, however, it recognises that the tie can be dissolved through a divorce. The essentials of a Muslim marriage include an Offer of marriage by the groom, Acceptance by the bride and the Consideration in form of Mehr.
Under Muslim laws, a divorce may take place by the act of the parties themselves or by a decree of the court. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. The Dissolution of Muslim Marriage Act, 1939 provides for certain additional grounds on which a Muslim woman may obtain a divorce.
There are two types of divorce by common assent, in both, the wife needs to part with her property. One is the "Khula" divorce and the other one is the "Mubarat". You can consult with a good divorce lawyer in India to understand the concept of mutual consent divorce in Islam.
The literal meaning of the word Mubarat is ‘obtaining release from each other’. It is said to take place when the husband and wife, with mutual consent and desire, obtain release and freedom from their married state. The offer for separation in mubarat may proceed either from the wife or from the husband and as soon as it is accepted dissolution is complete.
It takes effect as one irrevocable divorce without the aid of the court. Under Hanafi law, mubarat is equivalent to one irrevocable pronouncement of talaq, making it necessary for the parties to contract a fresh marriage with each other if they wish to resume a marital relationship.
While in the Khula divorce, the request proceeds from the wife to be released and the husband agrees for certain consideration, usually the mahr, in mubarat apparently both are happy at the prospect of being rid of each other. No formal form is insisted on for mubarat by the Sunnis. The offer may come from either side. When both the parties enter into mubarat all mutual rights and obligations come to an end.
Mutual Consent Divorce under Special Marriage Act
The husband and wife can get a mutual consent divorce under Section 28 of the Special Marriage Act. It is a mandatory condition for the husband and wife to live separately for a period of at least 1 year before filing a divorce petition. The court has the discretion to grant a cooling off period for 6 months, during which the divorcing spouses have the option to withdraw their divorce petition.
However, once this cooling off period is over, the couple have 18 months to file a second motion for their divorce through their divorce law advocate . After this 18 months period, the court grants a divorce on mutual consent.
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