The duration/time for obtaining a divorce by mutual consent is 6 months. However, the Hon’ble Supreme Court of India has waved the six months period in CIVIL APPEAL No. 4490 OF 2016 (in some exceptional cases) in Mutual Consent Divorce.
The spouses, who desire to obtain divorce through Mutual Consent, should talk to each other about the future course of action and must come to a conclusion about the children if any and their education, child custody, child maintenance, alimony, financial settlement, etc., and approach the lawyer/advocate for filing the petition in the Hon’ble Court under Mutual Consent Divorce. Accordingly, the lawyer/advocate will prepare the draft (petition) as per the terms and conditions agreed by the spouses.
Both the wife and husband must present to the Court of Law at the time of filing the Petition for Mutual Consent Divorce. Both parties must wait for six months (mandatory) and if the disputes are not resolved between them and have to file the separate Affidavits praying the Hon’ble Court to dissolve their marriage and the Hon’ble Court will pass a Decree of Divorce under Mutual Consent, dissolving the Marriage and if the disputes are resolved within these 6 months, both the spouses are at liberty to withdraw the Mutual Divorce Petition.
Where to file the divorce petition?
In the family court of the city/district where both the partners lived together for the last time, which was their matrimonial home.
Laws relating to Mutual Consent Divorce
There are different laws of divorce for a different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955 .
Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872 .
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. And there is also a secular law called Special Marriage Act,1954.
The mutual consent divorce petition should also contain a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. The court will pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree if the following conditions are met:
- The second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
- After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
- The petition is not withdrawn by either party at any time before passing the decree.
If the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of 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. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for mutual divorce .
In a mutual consent divorce petition, the marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, that means Both parties have to agree to Divorce.
Mutual Consent Withdrawal
Before a decree for mutual consent is passed, the question arises whether the party can withdraw its consent or not. At times, the question has also come before the Court and there was a conflict of opinions on the point whether the parties to a divorce can withdraw its consent unilaterally. The Bombay High Court in
Jayashree Ramesh Londhe v. Ramesh Bikaje Londhe
. expressed the view that crucial time for the consent for divorce under section 13B was the time when the petition was filed.
If the consent was voluntarily given, it would not be possible for any party to nullify petition by withdrawing the consent. The Court took the support from Order 22, rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs to the suits.
New Scenario of Divorce by Mutual Consent
Today wives are not ready to merely live at the mercy of their husbands and the members of their family.
In 1978, a dispute as to the choice of the matrimonial home had arisen between a husband and wife who were employed at two different places before their marriage. The question was as to whether the right to chose the matrimonial home is vested with the husband only or also with the wife.
“With more and more women taking up jobs and wanting to retain them even after their marriage, the question becomes increasingly important and controversial.” There arose a dispute because of husband’s low financial status who was in Delhi and on the contrary wife’s excellent financial condition who was in Kanyakumari. A solution of divorce through mutual consent was suggested in such situation.
Divorce by Mutual Consent in Case of Marriage with An NRI
- If the marriage is solemnized through Hindu law, divorce through mutual consent is the easiest way to get judicial separation as the country’s law on divorce when married to NRI is not strong enough.
- Both the couple if married under the Hindu law can approach the right court as mentioned in the above procedure and get a divorce by mutual consent.
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