Although it is thought that relationships are formed in heaven, sometimes these holy relations do not last forever. Nowadays, divorce is viewed casually, and people use it as a first resort, despite the fact that the law was intended to make it a last resort. Many times, in a marriage, the partners can no longer stand each other and can no longer live happily together. In such cases, the couple can resort to divorce by mutual consent. Mutual Divorce happens when both husband and wife mutually agree that they cannot live together anymore and arise at a decision to end their marriage.
Essential Conditions of Mutual Divorce
- Parties should be living separately– To end the marriage through mutual divorce parties must have been living separately for at least one year before filing the divorce petition. Living separately does not mean living in different places. A couple must be living under the same roof but not sharing the bond of husband and wife qualifies the necessary condition of living separately.
- Parties are not able to live together– There are several situations in which a couple is not able to live together even after trying mediation, reconciliation, and giving multiple efforts. In such a situation the couple can resort to divorce by mutual consent. After filing the petition, the parties are given a cooling period of six months which can be extended to eighteen months. During this time, both parties must reflect and consider their choices. If the parties are still not able to live together then a decree for divorce should be passed by the district judge.
- Parties have mutually decided to end the marriage– To end the marriage through a mutual divorce both the parties must have agreed to end the marriage. The divorce petition under mutual divorce is filed jointly by both parties. The petition can be withdrawn at any time by the parties. It appears that the petition may be withdrawn at the request of one of the parties within six months of the petition’s filing date. The individual right of a party to withdraw the petition appears to be barred when a joint motion is taken by the parties after the expiration of six months but before the expiration of eighteen months from the date of presentation of the petition for inquiring.
- Parties must jointly file for divorce without any undue influence, fraud or bribe– Both the parties must have agreed mutually and without the coercion of the other parties to file for the divorce petition. If both the parties are not ready to file for the mutual divorce then the party seeking for divorce can file for divorce under the grounds mentioned in Section 13 of the Hindu Marriage Act.
Advantages of Mutual Divorce
- A mutual consent divorce eliminates unnecessary conflicts, saving both spouses time and money.
- The decisions related to maintenance and custody of the child can easily be decided by the parties mutually before the marriage is dissolved.
- In this divorce, the court legalizes everything and agrees to everything which has been discussed and decided between the couple.
- Under this, the spouses need not explain the reason for divorce before the court of law.
- It does not lead to any confusion or chaos between the parties regarding how the assets and liabilities will be divided between the couple.
- If the divorce takes place amicably without any conflict the couple can continue to be friends rather than sworn enemies.
Procedure for Mutual Divorce
To get a divorce by mutual consent, one must follow several steps. In India, the process of mutual divorce usually begins with the filing of a petition under Section 13B of the Hindu Marriage Act. Two motions are also involved in this procedure. Following are the important steps:
- Filing a Joint Petition– The filing of a joint petition in the appropriate family court is the first step. Both parties are required to sign this joint petition. The divorce petition includes a mutual statement by both parties stating that they can no longer stay together owing to fundamental disagreements and should be granted a divorce. This statement also includes an agreement to distribute assets, parental rights, and other matters.
- The appearance of both the parties in Court– The second step involved is the appearance of both the parties before the competent court before which the petition is filed. The court fixes the date and on this date, parties are asked to present before the court with their counsels.
- Scrutiny of the petition by Court– The court will further scrutinize the petition and documents filed by both parties. When the court is satisfied, it records the statement of both parties. In some cases, the court tries to mediate a settlement between the parties. When the parties are unable to reunite, the divorce proceeding is initiated.
- Recording of statement and passing of the order on First Motion– When the statement of both the parties are recorded; the court passes the first motion order. Earlier six months were given to the parties to reconcile. These six months can be extended to eighteen months and after that second motion can be filed. This is no longer a mandatory provision. The Supreme Court in the case of Amardeep Singh v. Harveen Kaur, waves off the cooling period of six months if it is believed that both parties are committed to the divorce and there is no possibility of cohabitation between an estranged couple and no alimony, child custody, or property issues are raised.
- Appearing for Second motion– If neither party agrees to come together after six months from the first motion or by the conclusion of the reconciliation period, the parties may appear for the second move for the final hearing. This also entails the parties appearing in court and making remarks that are recorded. Both parties present their cases at the final hearing, and the court records their statements under oath in the family court.
- The decision of the Court– The free consent of both parties is the most fundamental criterion for a divorce by mutual consent. In other words, the court cannot award a decree of divorce by mutual consent unless there is a complete agreement between the husband and wife for the dissolution of the marriage and the court is pleased. The court makes the appropriate decisions and dissolves the marriage based on the parties’ statements and the facts and circumstances of the case. The court next issues a divorce decree, which makes the divorce final.
In Sureshta Devi v. Om Prakash, it was held that living separately does not mean that parties should reside at different places. When the parties are residing under the same roof but not living as husband and wife also constitute as living separately. Therefore, it is an essential condition for divorce by mutual consent.
In Pradeep Pant & Anr v. Govt of NCT Delhi, the couple was not able to live together due to temperamental differences and started living separately. Despite their best attempts, they were unable to reconcile their marriage and could not imagine living together again as husband and wife. A divorce case was jointly submitted, and issues including child support and custody were negotiated and agreed upon by both parties. The wife got custody of the child and the husband got the visitation rights. There was no scope of reconciliation between the parties therefore the court granted the decree for divorce.
In Anil Kumar Jain v. Maya Jain, it was held that the consent given by the parties when they file the joint petition for divorce by mutual consent must last until the second motion. The petition is brought before the court for orders and a divorce decree is issued and the Supreme Court can exercise its extraordinary power under Article 142 of the Constitution.
Divorce is a grievous issue that should only be utilized as the last choice; but, nowadays, many do not hesitate to get divorced. It disintegrates families, and the child of divorcing couples faces significant trauma as a result of growing up with separated parents. The ideal approach to divorce is by mutual consent since the parties do not have to publicly humiliate one other in court and may voluntarily settle any conflicts and end their marriage. The overall mutual consent divorce process, from the time of filing to the finalisation of the divorce decision, can take anywhere from 6 months to 1-1.5 years.