Divorce is legal process of separation between husband and wife. Mutual divorce is when both the husband and wife agree that they cannot live together anymore and for them best solution in divorce. Both husband and wife can apply for the divorce mutually for that they have to present mutual divorce petition jointly before the honourable court. Divorce has become very general. Earlier, divorce was the last action but nowadays people use it as a first resort. There can be such situations where the partners can no longer live happily together. In such cases they can go for divorce by mutual consent.
Essential conditions of mutual divorce
There are various essentials for a mutual divorce. They are as follows:
Parties should be living separately– The parties must have been living separately for at least one year before filing the divorce petition. The condition of living separately under the same roof or in different residence both are satisfied the only thing is that they must not be sharing the bond which is usually shared by the husband and wife.
Parties are not able to live together– There are several situations in a marriage where both the husband and wife is not able to live together. There may be situations where even after trying mediation, reconciliation, and giving multiple efforts the condition doesn’t get better. In such a situation the couple can turn to divorce by mutual consent. The parties are given a cooling period of six months which can be extended to eighteen months after the petition is filed. This time is given so that the couples can think over their relationship again. If they 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– For a mutual divorce both the parties must have agreed to end the marriage. Under mutual divorce the petition is filed jointly by both the parties and the petition can be withdrawn by the parties any time. The petition may be withdrawn at the request of any one of the parties within six months of the petition’s filing date.
Parties must jointly file for divorce without any undue influence, fraud or bribe– Both the husband and wife must have agreed mutually to file for the divorce petition without any coercion of the other parties. 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.
Procedure for Mutual Divorce
There are several steps to get divorce mutually. In India, the process begins with the filing of a divorce petition under Section 13B of the Hindu Marriage Act. There are two motions which are involved in this procedure.
Filing a Joint Petition– The first step for mutual divorce is filing of a joint petition in the appropriate family court and both the parties are required to sign this joint petition. There is a statement included in the petition which states that both the parties can no longer stay together divorce petition includes a mutual statement by both parties stating that they can no longer stay together and should be granted a divorce and also this statement includes an agreement on matters like to distribute assets, parental rights, and more.
The appearance of both the parties in Court– The second step is the appearance of both the parties before the court with their respective lawyers. The date for the appearance is fixed by the court.
Scrutiny of the petition by Court– The court will further examine the petition and documents filed by both parties closely and thoroughly. 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– After recording the statements, 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 is passed but now this is no longer a mandatory provision. In the case of Amardeep Singh v. Harveen Kaur, the Supreme Court wave off the cooling period of six months if both the parties are committed to the divorce and issues such as alimony, child custody, or property are not raised.
Appearing for Second motion– By the end of reconciliation period, if neither party If neither parties agrees to come together the parties may appear for the second move and can go ahead with the final hearing before the court. The final hearing includes both parties present their cases and the court records their statements under oath in the family court.
The decision of the Court– The court cannot award a decree of divorce by mutual consent unless there is a complete agreement between both the parties for the same and the court is pleased. Based on the statements given by the parties and upon the facts and circumstances the court makes a decision and dissolves the marriage. The court then issues a divorce decree, which makes the divorce final.
It can be concluded that the divorce rate is getting higher day by day because instead of keeping it as the last resort people are keeping it as the first resort which not only separates the couples but also disintegrates the families and their children.
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