Section 13 B of the Hindu Marriage Act contains provisions for mutual consent divorce and this article aims to inform the litigants/common people who are looking for information on the legal matters of mutual consent divorce. It also describe the complete process of obtaining a mutual consent divorce decree.
What is Mutual Consent Divorce?
It is important to understand that divorce is not granted only by signing papers as perceived by common people. It is a remedy to be exercised by both husband and wife. The couple must file a joint petition under Section 13-B of the Hindu Marriage Act before the Family Court. The court examines the genuineness of the parties and cases filed before it.
Who Can File a Divorce by Mutual Consent?
Under Section 13-B of the Hindu Marriage Act, both parties to the marriage, i.e. the husband and wife, have to file a joint petition for the grant of a decree of divorce by mutual consent.
Why Is Mutual Consent Divorce Remedy Available In Law?
The legislature in its wisdom has given statutory remedy to the couples who mutually want to settle their dissolution of marriage through a decree of divorce. The legislature understands that if there is no conflict or issues among the couple which is to be settled by law, it is better that judicial process is not long and cumbersome.
Where Can a Petition Seek Mutual Consent Divorce be Filed?
The mutual divorce is filed before Principle Judge, Family Court as per the mandate of Section 19 of the HMA that specifies the jurisdiction of the court in which a divorce petition may be filed. For practical purposes, the petition under Section 13 B can be filed in the Family Court in the district where the marriage was solemnized, where the married couple last lived together, or where the wife currently lives. As per Section 19, every petition filed under this Act must be filed in the Family Court within the local jurisdiction of whose original civil jurisdiction:
- The marriage was solemnized, or
- The respondent, at the time of the presentation of the petition, resides, or
- The parties to the marriage last resided together, or
- In case the wife is the petitioner, where she is residing on the date of presentation of the petition; or
- The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been recognized as being alive for seven years or more by people who would have naturally heard of him if he were alive.
How to File Mutual Consent Divorce?
Mutual divorce is like any other case filed before the court. The limited difference is that this case is disposed of/decided within 6 months after 2 motion statements given by the parties before the court. The husband and wife shall file a joint petition under Section 13-B of the Hindu Marriage Act before the Family Court with the required documents. The following are the conditions for filing a divorce and filing divorce by mutual consent, as stated in the acts mentioned below:
- A petition for dissolution of marriage by a decree of divorce may be filed in the district court by both parties that they have been living separately for one year or more;
- The parties are married for more than 1 year.
What Are the Points to be Incorporates in the Joint Mutual Consent Divorce Petition?
The Divorce Lawyers consider these following legal points while drafting a divorce petition:
- The parties have separated since they were unable to work together due to a lack of understanding and temperamental differences. Several encounters between the parties have already taken place, with the help of common relatives, but no fruitful outcomes have been produced;
- The marriage has now totally and permanently broken down;
- The parties have not lived together as husband and wife in over a year and have been living separately since then;
- The parties have voluntarily reached an amicable agreement to settle their differences and have decided to part ways;
- One-time, full and final agreement;
- Nothing is due for any item, past, present, or future maintenance;
- Both parties have mutually agreed that any complaint/case/application pending before any competent court of law/competent authority that is not in either party’s knowledge or has escaped their attention would be withdrawn by them;
- The parties did not get their agreement to file the present petition through force, coercion, enticement, or any other form of undue influence;
- The petition was not filed with the consent of the parties.
The Procedure in Mutual Consent Divorce:
Steps involved before the filing of the petition:
Step 1: One-year separation period before the filing of the petition. However, if there are extraordinary hardships, the court may grant an extension by filing suitable applications.
Step 2: Drafting of an agreement between both the parties (wife and husband).
Procedure in Court proceedings:
Step 3: Filing of a joint petition by both husband and wife’s affidavits under Section 13 B of the Hindu Marriage Act;
Step 4: Recording of first motion statement;
Step 5: Cooling off period of 6 months. (Application for waiving off this cooling period can be moved in certain cases);
Step 6: Recording of Second Motion statement;
Step 7: Decree of Divorce.
When Can Divorced Persons Remarry?
The provisions for remarriage are specifically stated in Section 15 of the Hindu Marriage Act. As per the mandate of this section, it is legal for either party to get married again, if the marriage has been dissolved by a decree of divorce and there is no right of appeal against the decree, or if there is an appealing right, the appeal period has expired without an appeal being filed, or an appeal has been filed but has been dismissed. According to the rules of this section, after receiving a divorce decree, the parties can remarry when the statute of limitations for filing an appeal against the divorce decree has expired, and in the event that an appeal has been filed after the appeal has been dismissed. In divorce cases, the time limit for filing an appeal to the High Court is 90 days from the date of the judgment or order.
Benefits of taking Divorce by way of Mutual Consent:
- Parties do not engage in pointless litigation;
- A quick and effective solution;
- Litigation that is both cost-effective and hassle-free;
- Independence in determining the terms of a settlement;
- There is no bitterness or exploitation between the litigants.
How can a Lawyer help you?
The couples involved in a divorce are under a lot of stress and at times, they not able to take the right decisions. The correct approach to alleviating this stress is to hire a competent lawyer who can educate both parties about their rights and liabilities and take you through the legal process without any troubles. The best divorce lawyers can provide you with expert guidance and the consequences of your steps. You can seek legal advice on your matter from our qualified divorce/matrimonial lawyers at The Law Codes.