Author - Associate Debasmita Patra
Under the Hindu Marriage Act, 1955, both spouses are given the right to dissolve their marriage by a decree of divorce with the aid of a divorce lawyer on more than one ground, which are specifically enumerated in Section 13. Section 13B of the Act gives provisions for divorce on mutual consent on the following grounds:-
1) Both the parties to marriage or spouses have not been able to live together.
2) They have been living separately for one year or more.
3) They have mutually agreed for dissolution of the marriage.
Mutual consent is generally defined as both the spouses agreeing for peaceful parting. One of the major prerequisites for divorce by mutual is the consent of both parties to a marriage. There are two aspects on which the husband and wife have to reach consensus:
- Maintenance issues
According to the law, there is no minimum or maximum limit of maintenance. It can be any figure or no figure. Child custody in divorce by mutual consent can be shared or joint or exclusive depending upon the understanding of the spouses.
Through divorce by mutual consent is a novel approach; at times, situations arise where such a divorce becomes difficult.
1. Both the husband and the wife need to file a petition seeking divorce together before the District Court. The couple has to make sure, before filing the petition, they have been living separately for one year or more.
2. Once the petition is allowed, parties are required to file the statement. In case of the inability of any party, any family member of such party may submit the statement on their behalf. This establishes the First motion.
3. The divorce is then adjourned for six months, Court, after a cooling off period of 6 months, will give a date for listening to the parties. During this period, any of the partners is entitled to withdraw the mutual consent by filing an application before the Court stating his or her unwillingness to seek divorce by mutual consent. The other partner has to file a normal petition for divorce under the provisions of Section 13 of the Hindu Marriage Act, 1950.
After clearly hearing to the parties and on being completely satisfied, the Court passes a decree of divorce, thereby declaring the marriage to be dissolved:
• In any place where the parties last lived.
• Any place where the wedding was solemnized.
• Any place where the wife is residing as of present.
The cooling period of 6 months is given to the couple seeking divorce to rethink on the issue and recur chances of reconciliation, if possible. In a recent landmark judgment of Amardeep Singh v Harveen Kaur, the Supreme Court made a notable observation by holding that the six months cooling off period as contemplated under Section 13B (2) of the Act is not mandatory, but a directory provision and can be waived off under certain circumstances. Courts can exercise their discretionary rule depending on the circumstances and facts of the particular case and cancel the stipulated period where there is least or no possibility of resuming cohabitation, and there are chances of alternative rehabilitation.
In case of divorce by mutual consent, the maintenance or alimony is to be fixed by the parties through agreement. A particular sum of maintenance is to be given either by the husband to wife or vice versa as the case may be. The amount may be disbursed in gross or periodically for a term not exceeding the life of the applicant, as in his income and other property.
Regarding the custody of children, joint custody is a new legal solution where there is a deadlock, as both the parents want their offspring. In joint custody, only one of the parents will have physical custody while the legal custody of the children lies with both the parents. The interest of the child is also kept in mind by the Court throughout.
In case one of the parties withdraws the petition of divorce by mutual consent, other partner has to file a normal petition for divorce that can be granted only on certain specified grounds like desertation, cruelty, religion conversion by other spouse, leprosy , spouse having renounced the world or being missing for a 7 years or more.
1. Mutual consent
The parties to marriage sit together either with the help of relatives, lawyer or in mediations, to decide the maintenance and custody and visiting rights of children and related issues
2. Divorce agreement
All the agreed terms and conditions are documented in a paper which becomes binding on them. This mutual consent agreement has to be notarized and signed in the presence of a notary officer.
3. Preparing other documents
- A petition for divorce of both the motions (including the waiver of 6 months cooling off application if required)
- 4-5 recent photographs to be attached on the petition and the agreement as well
- Proof of marriage, either marriage card with photographs of marriage or marriage registration certificate.
- ID cards with address proofs of individuals.
After the Court records the statements and verifies the documents published, and both the motions are concluded, the Court will prepare a decree of divorce. The Court will prepare this. This will officially separate the couple.