October 3, 2017

Mutual Consent Divorce

  • What is divorce by mutual consent?

Section 13-B of the Hindu Marriage Act, 1955  says that the  parties can seek divorce by mutual consent by filing a mutual consent divorce petition before the court. Mutual consent means that both the parties are ready for peaceful separation.

Mutual Consent Divorce is a simple way of coming out of a wedlock . Most Important requirement is the consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus first  is the alimony or maintenance  . As per Law there is no minimum or maximum limit of maintenance. It could be any amount. Next important consideration is the custody of child . Child Custody in Mutual Consent Divorce if the child is below the age of 5 years is exclusively with the mother .

  • When can the divorce by mutual consent petition be filed?

The parties intending to dissolve marriage have to  wait for at least one year from the date of marriage.

They will have to show that they have been living separately for a period of one year or more before the presentation of the petition for Mutual divorce and that during this period of  they have not been able to live together as husband and wife.

  • Where to file the Mutual Consent divorce petition?

In the family court(District Court where family court is not available) of the city / district where both the partners lived together for the last time, which was their matrimonial home.

  • Are there any  different laws of divorce for different religions ?

Different laws are there for different religions

Hindu are governed by the Hindu Marriage Act,1955.

Christians are governed The Indian Christian Marriage Act,1872. Muslims are governed by their own Personal             laws of Divorce and  Dissolution of Marriage . Parsis are governed by The Parsi Marriage & Divorce Act-1936.

  • How to file divorce petition by mutual consent?

The divorce petition is in the form of an affidavit, which is to be submitted to the family courtor to the district court . After the filing of the petition and recording the statement of both the parties, the court generally puts a date of final hearing after 6 months .

After six months the parties have to present t again in the court for confirming the mutual consent filed earlier. If both the parties gives their consent again then a decree for divorce is given by the judge

  • Can a party to divorce withdraw the mutual consent petition after filing in the court? What will happen by that?

If the consent is withdrawn by any one of the two parties within the period of 6 months or on the final hearing  after 6 months In such circumstances, the court grants no divorce decree.

  • What other partner will  do under such circumstances?

No option is available to the other party in  such circumstances except to file a normal divorce petition under the         provisions of the Section 13 of the Hindu Marriage Act, 1950.

       Grounds on which divorce can be taken :-
  •  Cruelty
  •  Desertion
  • voluntary sexual inter-course with another person
  •  conversion
  •  Leprosy
  •  venereal disease
  •  a spouse having renounced the world or being missing for a period of more than 7 years
  • unsound mind
  • Can the spouse consent for remarriage without getting divorce from existing partner?

Remarriage without getting divorce is a punishable offence with imprisonment upto seven years.

  • If the spouse is not heard for a long time, can the divorce be applied?

If a spouce is not heard for a continuous period of 7 years then a divorce petition can be filed.

  • When the divorced persons can remarry?

If no appeal is filed from the original order of divorce then the divorced persons can remarry.

  • How much time will  the whole process take from the starting to the end ?

It takes from six months to one year from the date of filing of the petition. It varies from case to case & place to              place