A Guide to Mutual Divorce

Published on 15 Jul 2017 by Team

The Hindu subculture has always regarded marriage as a holy union of 2 bodies to become 1 and then live happily. Although the framers of this principle never knew that the idea of Living happily is mere a Myth in today’s environment. People do have alternatives to do well of their fed up life.

In the present culture if someone does not feel much happy, about, their better half they tend to move on & find someone else who makes them feel happy. Although the idea of Mutual Divorce in India has been taken from the western culture yet it is one of the ideal principles of living happily. There used to be a certain time when people were forced to marry the person who was chosen by their parents. Although half of India still adapts to this policy. Yet the other half has moved on & adapted to the idea of if you are not happy now, you won’t be happy in the future too. So evolving the principle of Divorce Indians adapted to the idea of divorce not only when they are subject to Cruelty or Ill-treatment but also when there is a failure in making the marriage work.

Indian Laws are exhaustive in providing ample choices of getting a divorce. A divorce can be demanded through mutual consent very easily. When the husband and the wife decide to move ahead in their respective lives separately, and mutually agree to the terms and conditions of their divorce, this process of divorce is called Divorce by Mutual Consent. The Hindu Marriage Act, 1955 provides that both the husband and the wife have a right to get their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated in Section 13-B.

Conditions For Mutual Divorce

There are basically 3 conditions which can be fulfilled to get a mutual consent divorce in India. These grounds are:

  • Both the parties to the marriage have been living separately for a period of one year or more
  • They have not been able to live together
  • They have now mutually agreed for the dissolution of the marriage

Documents Required

  • Address proof of husband
  • Address proof of wife
  • Marriage certificate
  • Four passport size photographs of the marriage of husband and wife
  • Evidence proving spouses are living separately for more than a year.
  • Evidence relating to the failed attempts of reconciliation

Further when the case proceeds in the Courts; there are certain other documents which have to be presented to get a Divorce Decree:

  • Income Tax Returns (3 years)
  • Details of present income
  • Birth and family details
  • The details of the assets

Competent Court and Jurisdiction

There are various courts that can try a Divorce case, but eventually, only the competent court must be approached to get a Regular Valid Decree. The petition for mutual divorce can be filled in these competent courts:

  • The court having jurisdiction over the area where couple seeking divorce last lived together
  • The court having jurisdiction over the area where marriage was solemnized
  • The court having jurisdiction over the area where the wife is residing as of present

Procedure To Obtain Mutual Consent Divorce

The process of getting the divorce might seem a little hectic, yet it the ideal process to follow the same. The procedure being:

  • Petition to be filed under Section 13 B of Hindu Marriage Act, 1955.
  • Both the parties need to file this petition together seeking the divorce before the District Court.
  • The parties intending to dissolve marriage can file for divorce after at least one year from the date of marriage.
  • Both the parties need to file the petition together seeking the divorce before the District Court.
  • Parties are required to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce.
  • Jurisdiction is with the Family Court of the city/ district where the parties last resided together (matrimonial home).
  • The divorce petition is filed in the form of affidavit thereby stating that the divorce is by mutual consent and containing the agreed clauses by the parties. (First Motion)
  • Recording of statements of both parties by the court.
  • Six months of cooling period (not more than eighteen months in any case) granted by the court in a case to the parties wish to consider any reconciliation.
  • During the period of six months, any of the party is fully entitled to withdraw the mutual consent by filing an application before the court.
  • After six months, parties present themselves in front of the court.
  • Parties confirm the mutual consent filed earlier. (Second Motion).
  • Decree of Divorce granted by the court.

NRI Divorce

With the question of getting a divorce the remedy is similar for the NRI’s too but in certain cases, the NRIs may follow up to the Courts which are non-Indian & seek a remedy of Divorce by mutual consent by virtue of the Countries Judicial Autonomy.

NRIs/non-resident Indian couples who got married in India can file for a mutual divorce in India. The couple can also file a divorce petition in the foreign country under the laws of that country in which the couple resides but the decree passed by foreign courts should not be inconclusive of Section 13 of the Civil Procedure Code, 1908. Hence, it is subject to the discretion of the Indian Courts, if challenged otherwise. Also, the court may grant camera proceedings to take place as an exception.

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