What is divorce by mutual consent and how can one seek it?

Dated: 2024-03-16 18:45:45

Who gets the custody of child in divorce by mutual consent. what is the law regarding the alimony and maintenance.

Answers by Lawyers

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;

  1. Both the parties to the marriage have been living separately for a period of one year or more;
  2. They have not been able to live together;
  3. They have mutually agreed that the marriage should be dissolved.

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:

  1. Whether there was a valid marriage;
  2. The parties have been living apart from each other for a period of one year or more;
  3. Whether they were not able to live together at the time of presenting the petition and continue to live apart;
  4. Whether they had mutually agreed to dissolve the marriage before or at the time the petition was presented.

 

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

  • Address proof of the husband
  • Address proof of the wife
  • Marriage Certificate
  • Evidence proving that the husband and wife were living apart for a period of one year
  • Evidence stating the failed attempts of reconciliation

Moreover the petitioner has to submit the following documents while filing the divorce suit in the appropriate court

  • Income tax statements for the last 2-3 years
  • Details of profession and present remuneration
  • Information relating to family background
  • Details of properties and other assets owned by the petitioner

 

 

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