How To File For Mutual Divorce

Rohit Pradhan

Mutual Consent Divorce is considered as one of the uncomplicated form of obtaining a Divorce in India. When both Husband and Wife dispose of their will to dissolve marriage in the Family Court, Court may grant the Divorce.

Advantages of Mutual Divorce:

First and foremost reason herein is that there will be no need to provide any reasons as to why they seek the Divorce. What is advantageous here is the fact that their personal issue will not be subjected to public knowledge, hence the privacy will be preserved. This type of Divorce is not time consuming and is cost effective

Laws Governing Mutual Divorce:

Which Law will be governing ones Divorce will be based on the religion of such subject. In India there are personal laws which are applicable based on the religious belief of the party, therefore it is party’s religion which will decide as to which law will be applicable while obtaining consent divorce.

The Hindu Marriage Act, 1955 applies to Those belonging to Hindu, Sikh, Buddhists, and Jains Religion.
Special Marriage Act: applies to Those Couples who have opted for Court marriage or Couple belonging from Different Religion.
Divorce Act, 1869: Applies for those belonging from the Christian Religion
The Muslim Marriage Act, 1939 Governs the laws Related to Marriage and Divorce for Muslim Couples.

Section of each Act Dealing in Mutual Divorce:

Hindu Marriage Act, 1955:

Section 13B of The Act has given both husband and wife a right to get their marriage dissolved by Mutual Consent Divorce. 13-B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Special Marriage Act:

Section 28 of the Special Marriage Act, 1954 provides for Divorce by mutual consent for those who have registered their Marriage under Special Marriage Act. Special Marriage Act applies to Inter-Religion Marriages and Court Marriage.

Divorce Act, 1869:

Those married Under Christian Laws can Obtain a mutual consent divorce under Section 10A of the Divorce Act, 1869

Essential Requirements For Mutual Divorce are as follows:

Husband and Wife has to be living Separately For One year.
In case of Christians Two Years separation is Prescribed.
This separation means no Congenial Relationship for the prescribed period; and
Husband and wife mutually agreed to the desire to dissolve their marriage.

To File for mutual Divorce The Couple have to Mutually agree upon certain facts Before Filing the petition they are:

Custody of child;
Alimony (lump sum maintenance to be decided between parties;
Return of items i.e. dowry, streedhan, etc;
Litigation expenses

Facts To Know before filing Mutual Consent Divorce:

One year separation period Must before Filing The petition and two years in case of Christians.
The couple can Submit a Joint petition For mutual Divorce in the family Court or District Court where:
i. Where they Last Resided
ii. Where the marriage took Place
iii. Where the Wife Resides
iv. The entire Process takes 6 Months.
v. Couple can extend the period of second motion till upto 18 months
vi. This period can be Shortened to within 3 months by Filing a separate application to waive off Cooling period of Six months. (This entire Depends on the Discretionary powers of the Judge)

Documents Required to File a Mutual Consent Divorce:

Proof of Address of Both parties i.e. Aadhaar Card/Passport/Electricity Bill/Ration Card (either one of them)
Marriage Certificate
Wedding Card
Marriage Photograph
Passport 4 Passport size Photographs
This is an exhaustive list and depends on the grounds of filing the divorce petition.

Procedure to File Mutual Consent Divorce Petition:

Petition to file for Mutual divorce:

The First step is to File a Joint petition in the family Court/District Court in the Correct Jurisdiction mentioned in the Graph given above. the petition should contain that both are unable to live together and have mutually agreed to dissolve the marriage and that they have been living separately for a period of one year or more. the petition is to be duly signed by Both parties.

First Motion:

After the petition is filed and accepted by the Court a date for First motion is give (in some places same day of Filing) Respective lawyer will present the Mutual petition before the Hon’ble judge.

After Critically examining the documents and the petition presented in the court. The Hon’ble judge may upon being satisfied direct the court to record the statements of parties, then the parties have to both sign and give thumb impression in the petition (party’s statements to be recorded on oath) and submit it before the Judge. The Court will than grant the first motion.

Cooling-Off Period

After the Completion of First motion a Cooling period of six months is given, before the Second motion can be filed. This period is given to the couple to reconsider their decision. If they agree upon to co-habit, give each other a chance, the couple may appeal before the court to cancel the mutual Divorce petition, which the court will happily do so.

Second Motion:

After six months of the first motion or at the end of the reconcile period/coolling off period If both parties still don’t agree to live together and desires to go for second motion. they may file for second motion between a time frame of six to eighteen Months.

The second Motion also known as Final hearing of a Mutual Consent Divorce includes parties having to appear and record their statements before the Family Court.

Judge Grants Decree of Divorce:

Finally before Granting Divorce Decree the hon’ble court will satisfy itself that both parties have settled matters related to alimony, custody of a child, maintenance, property, and such other things amicably and that there remains no disagreements between the parties. the court will finally grant a Divorce Decree.

Mutual Divorce is Non-Appealable:

Once the Court Grants a Divorce Decree in Mutual Consent it cannot be Challenged nor can you file for appeal in Higher Court Challenging the Decree at a later date, It is the Final Order and nothing can change it. This is Because Mutual Divorce is a Consenting Decree of Divorce.