Dated: 2024-03-28 11:01:39
Who gets the custody of child in divorce by mutual consent. what is the law regarding the alimony and maintenance.When it is impossible for the parties to carry on their union with mutual love and affection, it is better to allow them to be separate instead of compelling them to live together in an atmosphere of hatred and sufferings. When the Hindu Marriage Act (HMA), 1955 came into force, it introduced a new concept of divorce, which was unknown to the Hindus before. Marriage was believed to be a sacrament and a holy union. For a divorce to come into force under Hindu law, it has to be granted by the court.
Divorce in simple words can be explained as legal dissolution of marriage, that is, to put an end to the marriage. By seeking a divorce, the married parties are separated and revert back to the unmarried status and can marry other person again.
Now, the Hindu Marriage Act, 1955 provides for various grounds for seeking a divorce. In here we will be discussing the aspect of Divorce by Mutual Consent.
The amendment to the Hindu Marriage Act, 1955 by the Marriage Laws (Amendment) Act, 1976 provided a new ground for obtaining a divorce by mutual consent. This is provided under Section 13-B of the Hindu Marriage Act. The aim behind this section is that, when two parties agree to dissolve their marriage, then it is better to let them do it in a quiet and peaceful way rather than quarrelling in the court. This provision is applicable to the marriages which happened before the year 1976.
In order to seek the divorce by mutual consent, both the parties have to file an application, together, at the District Court under Section 13-B of the HMA. The application seeking divorce should state;
While filing the application the respective couple has to provide the reasons as to why they are not able to live together along with mentioning the fact that, they have been living separately for a period of one year and they mutually consent for divorce.
Cooling-off period, Decree of Divorce and related enquiry by the Court
The court provides for a cooling-off period, which is not less than 6 months and not more than 18 months. Between this time, the court will listen to the parties, and if the court is satisfied, then the court may pass the decree of divorce declaring the marriage to be dissolved. For the satisfaction, the court may enquire into the following mentioned aspects:
Waiving the cooling-off period
The statutory cooling period of 6 months is provided to the couple so as to rethink over the issue and also provides a scope for reconciliation.
The Supreme Court in the case of Amardeep Singh v. Harveen Kaur, concluded that, when the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony, and hence the court has the discretion to waive off the six month waiting period.
In case the parties withdraw the application or do not move to the court in the cooling off period, then the Divorce petition stands cancelled.
Alimony and Maintenance
When mutual consent is ground for divorce, then the alimony and the maintenance has to be fixed by the mutual agreement. If the husband or the wife wants maintenance or alimony, then as per the case one has to provide the other with the same.
Custody of Child
Since it is the case of divorce by mutual consent, the parties have to mutually decide upon the custody of the child. When there is a deadlock as to the point of custody of the child, Joint Custody is preferred, wherein the one parent has the physical custody and both have legal custody. The court does consider the views and wishes of the child.
Documents required
Moreover the petitioner has to submit the following documents while filing the divorce suit in the appropriate court
Krishnaveni Advocate