Nov 23,2022 | 8 min read

Settlement in Divorce Law with Mutual Consent

According to Section 13-B of the Hindu Marriage Act, the husband and wife must jointly file the petition in the Family Court with jurisdiction to grant the divorce by mutual consent. The terms of getting a divorce by mutual consent and filing for divorce are specifically mentioned in the statute.

Regardless of whether the marriage was consummated before or after the Marriage Laws (Amendment) Act, 1976 (68 of 1976), both parties to the marriage may jointly petition the district court for the dissolution of the marriage by a decree of divorce on the grounds that they have been living apart for at least one year, that they are unable to cohabit, and that they have mutually decided that the marriage should end.

If the petition is not withdrawn in the interim, the court shall issue a divorce decree upon the motion of either party made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months after the said date, if the petition was not withdrawn in that time.

The points to be included in the Mutual Divorce Petition:


  1. Due to their inability to come to an understanding and their temperamental differences, the parties have entirely cut connections with one another. The parties have already met several times with the proper involvement of common relatives, but no productive outcomes could be produced.
  2. The parties have been living apart since they last cohabited as husband and wife more than a year ago.
  3. The marriage has now irretrievably and irreversibly fallen apart.
  4. The parties have willingly resolved their differences through an amicable settlement and chosen to part ways.
  5. It has been mutually agreed upon by the parties that any complaint, case, or application that is pending before a competent court of law or other competent authority that is unknown to, or has escaped the parties' notice, must also be withdrawn by them.
  6. Nothing is still owed in relation to any items or Stidhan or maintenance—past, present, or future.
  7. One-time, complete, and binding settlement or agreement.
  8. The parties did not obtain each other's consent to file the current petition via the use of coercion, fraud, inducement, or any other unauthorized means.
  9. There has been no collaboration between the parties in presenting the petition.

 

Jurisdiction of the Court under whom the Mutual Divorce Petition is filed:

 

Section 19: Court to which petition shall be presented. —Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii)the parties to the marriage last resided together, or

(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]

Stages Under Mutual Divorce Petition:

Stage 1: Before filing the divorce petition, there must be a one-year separation period. However, in cases of extreme hardship, the court may grant a suspension of this time by filing the proper forms.

Step 2: Preparation of a settlement agreement between husband and wife.

Step 3: At the court stage, filing a joint petition in accordance with Section 13 B of the Hindu Marriage Act and including affidavits from both the husband and the wife.

Step 4: First Motion statement is recorded.

Step 5: Cooling Off Period of 6 Months 

Step 6: Second Motion statement is recorded

Step 7: Divorce Decree granted

Reference:

1.     https://www.legalserviceindia.com/legal/article-7424-mutual-consent-divorce.html

2.     https://blog.ipleaders.in/mutual-consent-divorce/

3.     https://www.legalserviceindia.com/legal/article-1594-divorce-by-mutual-consent.html

4.     https://vakilsearch.com/blog/things-to-know-before-filing-mutual-consent-on-divorce/

 


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ABOUT THE AUTHOR


KISHAN DUTT RETD JUDGE

About Advocate Kishan Dutt Kalaskar Retd Judge 20 years service as Judge in different capacities. Read and prepared Head Notes for more than 10,000 judgments of different High Courts and Supreme Court. Head Notes published by various Law Publishers. Now preparing Head notes for www.scconline.com. Worked in different capacities and dealt with several categories of cases. Having practical knowledge of law in practice and drafting and counselling.

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