DIVORCE BY MUTUAL CONSENT: HINDU MARRIAGE ACT

Section 13(B) of the Hindu Marriage Act deals with divorce by mutual consent, subject to the following conditions:

  1. The parties must have been living separately for 1 year, or more.
  2. The parties have not been able to live together
  3. They must have mutually agreed to dissolve the marriage.

The Court shall pass a decree of divorce declaring the marriage to be dissolved if:

  1. If petition is not withdrawn by the parties earlier that 6 months from the date of presentation of the petition, and not later than 18 months after the said date
  2. If the Court is satisfied that a marriage has been solemnized
  3. If the Court is satisfied that the averments in the petition are true

PROCEUDURE TO FILE FOR DIVORCE BY MUTUAL CONSENT:

  1. Court to which the petition might be presented: District Court within the local limits of whose ordinary original civil jurisdiction:
  2. the marriage was solemnized, or
  3. the parties to the marriage last resided together
  • Filing a Joint Petition:

A joint petition for divorce has to be presented to the family court by both the spouses on the ground stating that they have not been able to live together, have mutually agreed to dissolve the marriage and have been living separately for a period of one year or more.

  • Appearance before Court:

The parties will have to appear before the Court and present their lawyers. The court would critically observe the petition along with all the documents presented in the court.

  • Statement under oath:

After the petition is scrutinized by the court and it is satisfied, it may order the parties’ statements to be recorded under oath.

If the court is satisfied and the statements are recorded then the First Motion is said to have been passed.

  • 6-18 months waiting period:

The parties are to wait for a period of at least 6 months before the second motion. However, as was observed by the SC, the ‘cooling off’ period might be waived off in case the Court is convinced that the period would only ‘prolong their agony’ and all efforts of reconciliation have been futile.

However, before waiving off the cooling period the Courts will consider whether or not matters regarding alimony, custody of children, and property have been settled.

  • Second Motion:

If the parties agree to go ahead with the divorce, they can appear for the Second Motion.

This is when final hearings take place and statements are recorded again. If the issues of alimony and child custody (if any) are mutually agreed upon the decree of divorce is passed after the second motion.

  • Decree of Divorce:

If the court is satisfied after hearing the parties that the allegations in the petition are true and 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 becomes final once the decree of divorce has been passed by the court.

REFERENCES:

https://www.news18.com/news/india/sc-cuts-down-waiting-period-for-divorce-under-hindu-law-by-six-months-1516453.html

https://www.indiatoday.in/information/story/stey-by-step-procedure-to-file-for-a-mutual-divorce-1534492-2019-05-27

https://www.latestlaws.com/articles/how-to-file-for-divorce-by-mutual-consent-in-india-by-divyansh-rathi/

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