Mutual Consent Divorce – Step By Step Procedure
By Advocate Shefali Gupta
Shefali Gupta has been practicing before the Delhi High Court and District Courts and Tribunals in Delhi NCR.
She has dealt with cases involving various areas of law including Matrimonial laws, Arbitration – Mediation, Land, and Criminal laws.
How to file for Divorce by Mutual Consent?
As per Hindu Marriage Act, 1955; mutual consent divorce can be filed in a court of law if couple is facing difficulties and have decided to part their ways legally. A person can also ask for divorce if the other party is not willing or want to get a divorce- this situation is known as, ‘Contested Divorce’.
Divorce by Mutual Consent
Divorce by mutual consent is a divorce where both the party i.e. husband and wife mutually decided to dissolve their marriage by a decree of divorce. Various statutes have provided the right to husband and wife to dissolve their marriage by mutual consent.
Under Section 13 B of the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce through mutual consent on the ground that they have been living separately for a period of one year or more and they have not been able to live together.
Section 10A of the Divorce Act, 1869 and Section 28 of the Special Marriage Act, 1954, also provides for divorce by mutual consent.
Conditions and grounds for divorce by mutual consent
(i) Husband and wife have been living separately for a period of one year or more.
(ii) They have not been able to live together.
(iii) They have mutually agreed that the marriage should be dissolved.
On these grounds, mutual consent divorce petition can be filed by husband and wife.
Where to file a divorce petition:
The petition shall be presented to the district court where:
1. The marriage was solemnised
2. Opposite party/ respondent, at the time of the presentation of the petition, resides.
3. The Husband and wife last resided together
4. In case, the wife is the one who is filing petition she petition can be filed where she is residing on the date of presentation of the petition.
The procedure involved in case of Mutual Divorce
Step 1: Filing of Petition for divorce
Firstly, a joint petition for dissolution of marriage by a decree of divorce is to be presented to the family court by both husband and wife on the ground stating that they have been living separately for a period of 1 year or more, they have not been able to live together and have mutually agreed to dissolve the marriage.
The petition along with supporting affidavit must bear sign of husband and wife.
The marriage invitation card, photographs of marriage, ID proof of both the parties shall be filed with the petition.
Step 2: Appearing before Court and inspection of the petition
Husband and wife will have to appear before the family court after the filing of the petition.
The parties would present their respective advocates.
The court would critically observe the petition along with all the documents presented in the court.
The court may even attempt to bring reconciliation between husband and wife, however, if reconciliation is not possible, the matter would proceed for further proceeding.
Step 3: Recording of statement of parties on oath and passing of order.
After the petition is scrutinized by the respective court and the court is satisfied and found that there is no scope of reconciliation. The court may order may order the party’s statements to be recorded on oath. Once the statements on oath are recorded and duly signed by the parties, an order on the first motion is passed by the court.
Step 4: Period of 6 months is given before the Second Motion
The minimum six months period is given to both the husband and wife, before they can file the second motion.
The maximum period to file a second motion is 18 months from the date of presentation of the mutual consent divorce petition in the family court.
The period of 6 to 18 months is a cooling off period which is intended to give time and opportunity to the husband and wife to reflect on their move. In this transitional period the parties or either of them may have second thoughts.
Step- 5: waving off six month period
The Supreme Court has held that minimum cooling period of 6 months for granting the decree of divorce under the Hindu law can be waived by a trial court if there was no possibility of cohabitation between an estranged couple.
Even if, the court is of the opinion that the cooling period will only extend their sufferings, the six months can be waived off by the trial court.
Step 6: Second Motion and the Final Hearing of petition
If, the cooling period does not work for the parties and they have decided to go further with the proceedings, they both can appear for the second motion and proceed for the final hearings.
Again, the court will record the statement of the parties on oath.
Step 7: Decree of Divorce
In a mutual consent divorce, both husband and wife must have given their consent and there shall not be any differences left in the matters related to contentions regarding maintenance, alimony, custody of a child, etc.
If the court is satisfied after hearing the parties to the petition that there cannot be any possibility of reconciliation and cohabitation, it can pass a decree of divorce declaring the marriage to be dissolved.
The divorce only becomes final once the decree of divorce has been passed by the court.
By Advocate Shefali Gupta
Shefali Gupta has been practicing before the Delhi High Court and District Courts and Tribunals in Delhi NCR.
She has dealt with cases involving various areas of law including Matrimonial laws, Arbitration – Mediation, Land, and Criminal laws.
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