This article will guide you to step by step procedure of taking Divorce by Mutual Consent.
When Husband and Wife are not willing to live together and want to end their marriage then they can seek divorce by mutual consent under section 13 B of the Hindu Marriage Act,1955.
This section of the Hindu Marriage Act provides for mutual consent divorce for Hindus, Sikhs, Jains, and Buddhists.
Consensual divorce is the best way to end the marriage in a very peaceful manner.
Essentials of consensual divorce:-
- One year should be completed for marriage-The parties must be married for at least one year for filing divorce by mutual consent.
- Parties should be living separately- Section 13B of the Act provides that the parties have been living separately for more than a year. ”Living separately” means that the parties could be living in the same house, sharing the same roof but there must be a distance between the two.
In the landmark case of Surestha Devi v. Om Prakash, the Hon’ble Supreme Court held that living separately under Section 13b of the Hindu Marriage Act does not necessarily mean living in different places. The parties can be living together but not as husband and wife.
- The two parties have mutually agreed that marriage should be resolved-In some situations, the parties may choose to give their marriage another chance and mutually resolve their marriage. After the first motion has been passed, the parties have a total of 18 months to file for the second motion and if they fail to do so, both parties are deemed to have withdrawn their consent mutually.
Procedure for getting a decree of divorce by mutual consent:-
- Step 1-
Filing a joint petition-A divorce petition in the form of an affidavit is to be signed by both parties agreeing to all the terms and conditions. This joint petition needs to be filed before a family court in their region.
- Step 2-
First Motion (Appearing before the Hon’ble Court first)-After filing the joint petition, the parties shall appear before the Hon’ble Court and give their statements. If the court is satisfied, the statements are recorded. The first motion said to have been passed. Then the parties are given a waiting period of 6 months before the file for the second motion. This waiting period is given to them for reconciling and giving their marriage another chance. Just in case, they decide to change their mind.
- Step 3-
Counseling-Counseling is mandatory for both parties. If a divorce petition is filed in the family court, then counseling is provided to the parties. Wherein the consultant tries to reconcile both the parties by acting as a mediator. If the parties agree to their decision, the counsel has to submit the report to the Hon’ble Court.
- Step 4–
Second motion (Final hearing)-This is when the final hearing of the case takes place after 6 months and the statements are recorded again. After verification of the affidavit filed by both the parties and satisfaction of compliance with the terms and conditions agreed upon by both the parties (issue of alimony and child custody,if any). The Court orders the dissolution of marriage by mutual consent.
Is the 6 months waiting period mandatory?
Getting a divorce is a very serious matter , it can change the equation between the families and separate them .This waiting period of 6 months is given by the Hon’ble Court to both the parties to reconcile and give their matrimonial relationship another chance.They are advised to reconsider their decision in a peaceful state of mind.
In some cases,there is very little to no chance that can make the marriage work again. In the case of Amardeep Singh v. Harveen Kaur,it was observed that both the parties had internal disputes.These disputes escalated badly and many court proceedings, both civil and criminal, were followed.
Both of them mutually decided to resolve their disputes and by mutual consent filed for divorce in the Family Court.
The alimony was paid to the wife and custody of their children was given to the husband.Despite the waiting period,both the parties couldn’t reconcile.
In another case of K.Om Prakash v. K. Nalini,the parties were not happy with their married life and were allegedly having extramarital relationships.It was observed that they were living apart without ever visiting each other.So there was no chance of reconciliation.Both of them blamed each other for their unhappiness.
There was no other option left but only to file a divorce by mutual consent.The parties prayed for instant divorce. Considering that the parties have been living separately for a long enough period,there was no scope of getting their marriage work.
In this case,the High Court Of Andhra Pradesh held that section 13B of the Hindu Marriage Act,1955 should not read not as a statutory mandate but only as discretionary.
Divorce being a very serious issue which can destroy families should be only used as a last resort.When both husband and wife are not able to live together and don’t want to continue their marriage,divorce is considered as the solution to end the marriage.
Consensual divorce being one of the easiest way to separate without blaming each other is mostly considered in our country.
Rajat Rajan Singh
Editor-in-Chief at Law Trend
Advocate at Allahabad High Court Lucknow