As per the Indian legal system, the process of legal divorce begins when a divorce petition is being filed by either party. If both the spouses have jointly made a decision to split according to the law of the land then either party can initiate mutual divorce according to the Hindu Marriage Act, 1955.
Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provides for divorce by mutual consent.
The conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more.
(ii) That they are unable to live together.
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed. Hence marriage should be dissolved. Under these circumstances, a Divorce by Mutual consent can be filed.
Procedure to File Mutual Divorce
- Filing and serving divorce papers
Divorce starts with a divorce petition. The petition is written by one spouse (the petitioner) and served on the other spouse. The petition is then filed in a state court in the county where one of the spouses resides. Once the divorce petition has been "served" on the petitioner's spouse, it also acquaints them that the divorce process has begun.
In case of Mutual divorce, both the spouses have to present a joint petition for dissolution of marriage for a decree of divorce in the appropriate family court on the ground that they have been living separately for a period of one year or more, or saying that they have mutually agreed for divorce as they are unable to live together. Both the spouses need to sign this joint petition for divorce.
The petition may be filed in any of the following places;
- Court where the couple last lived
- Court where the couple’s marriage was solemnized
- The court in the area where the wife currently resides
It’s advisable to contact an experienced divorce lawyer to get you help in preparing, filing, and serving the divorce petition.
While specific requirements and formats vary from state to state, the divorce petition usually contains the following information:
- Identification of the spouses by name and address
- Date and place of marriage
- Identification of children of the marriage
- Acknowledgment that the petitioner and/or his or her spouse have lived in the state or county for a certain amount of time prior to filing the petition
- Grounds for divorce
- Declaration or request as to how the petitioner would like to settle finances, property division, child custody, visitation, and other issues related to divorce.
- Appearance before court and scrutiny of the petition
After filing the divorce application both the parties have to appear before the family court. The court fixes the date and both the parties appear with their counsels. The court scrutinizes the petition along with the submitted documents. Once the court is satisfied with the submitted documents and the petition, the court will proceed with the divorce.
- Recording of statements on oath by court’s order
Once the court is satisfied with the scrutiny of the petition, it may pass orders for the recording of statements on oath.
- Passing of the order on the first motion
After recording the statements on oath an order on the first motion is passed by the court. After this six-month period is given to the parties before they can file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion. The presence of both parties is essential before the family court.
- Appearing for the second motion and final hearing
Once the parties have decided to go further with the proceedings and appear for the second motion, they proceed with the final hearings. Both the parties record their statements before the court. In case the second motion is not made within the duration of 18 months, the court will pass no decree for divorce. Any party can withdraw their consent till the time the decree is not passed.
Recently, the Supreme Court has held that the 6 months period given to the parties can be waived off at the decision of the court.
Therefore, for the parties who have genuinely settled their differences including alimony, custody of the child, or any other pending issues between the parties, these six months it can be waived off.
- Decree of divorce
In case of a mutual divorce, both parties must have given consent and there shall not be any differences left in the affairs related to arguments regarding alimony, custody of a child, maintenance, property, etc. There needs to be a complete agreement between the husband and wife for the dissolution of the marriage.
If the court is satisfied after hearing the parties that the allegations in the petition are completely satisfactory and there cannot be any possibility of reconciliation and cohabitation, the court passes the decree of divorce declaring the marriage to be dissolved.
Documents to be filed for divorce
- Marriage Certificate
- Address Proof - Husband and Wife.
- Four Photographs of Marriage.
- Income tax Statement of last 3 years. - Needed only in a contesting divorce case
- Details of profession and Income
- Details of Property and Asset owned
- Information about family (husband and wife)
- Evidence of Staying separately for one year
- Evidence relating to the failed attempts of reconciliation
Benefits of mutual divorce
- Speedy Disposal
- Compliance with the agreement
- No unnecessary quarrels
- Just two hearings
- No scene of Evidence/Cross Examination/Re-Examination
- No allegation on each other hence no question of proving or disapproving
Court gives sufficient time to reconcile the relationship. But when marriage is emotionally and physically disturbing for husband and wife; the parties have an option to file for a mutual divorce. After the passing of the final decree, either the party can remarry within 3 months from the date of the decision issued by the court.