Divorce by mutual consent – conditions and procedure

Divorce by mutual consent – conditions and procedure

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Divorce by mutual consentQuestion: What are the conditions for divorce by mutual consent of husband and wife? What procedure has to be followed for obtaining divorce by mutual consent?

Answer: Section 13-B of the Hindu Marriage Act, 1955 (as amended by the Amendment Act No. 68 of 1976) lays down the relevant provisions for divorce by mutual consent of husband and wife, i.e., by mutual consent of both parties to the marriage. It is pertinent to point out that the Hindu Marriage Act is applicable basically to a person who is Hindu, Buddhist, Jaina or Sikh by religion.

A similar provision for divorce by mutual consent exists also in Section 28 of the Special Marriage Act, 1954. This Act is basically an enabling statute, i.e., it applies only when two persons voluntarily choose to marry under the provisions of this Act. Generally, this Act is used when two persons want to perform a civil marriage or the so-called “court marriage”. If an inter-religious or inter-community marriage has to be performed, then it can be performed under the Special Marriage Act.

Since both these sections under the Hindu Marriage Act and the Special Marriage Act are similar, I am reproducing Section 13-B of the Hindu Marriage Act that provides for divorce by mutual consent:

13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

It may be pertinent to mention that Section 13-B was inserted in the Hindu Marriage Act in 1976 by way of the Amendment Act No. 68 of 1976, which means that this provision did not exist before 1976. However, in spite of this, a petition for divorce by mutual consent can be filed even for those marriages that were solemnized prior to 1976, provided other conditions are satisfied.

In the light of the above legal provision, let us now understand the nuances of divorce by mutual consent.

What is divorce by mutual consent?

As the name itself suggests, divorce by mutual consent means a decree of divorce obtained when both parties to the marriage, i.e., both husband and wife, agree for divorce in an amicable manner, with no party opposing it. A joint petition is filed together by both parties.

What are the conditions for making joint petition for divorce by mutual consent?

Following conditions must be satisfied for making a joint petition for divorce by mutual consent:

  1. That husband and wife have been living separately for a period of one year or more.
  2. That they have not been able to live together.
  3. That both husband and wife have mutually agreed that the marriage should be dissolved.

Thus, where the marriage has completely failed and both parties feel that it is not possible to live together, and where the aforesaid 3 conditions are satisfied, both the husband and wife can file a joint petition before the District Court for dissolution of marriage, i.e., for divorce by mutual consent, under the provisions of the aforesaid Section 13-B of the Hindu Marriage Act.

What is the procedure for obtaining divorce by mutual consent?

  1. If all the aforesaid conditions are satisfied, both husband and wife can file a joint petition before the District Court. This petition should be signed by both parties to the marriage. Such joint petition is usually required to be filed in the District Court at the place where the marriage was solemnized or where both parties lived together last.
  2. Upon filing of the joint petition, statements of husband and wife will be recorded by the Court.
  3. Thereafter, a period of at least 6 months is given by the Court. This is the legal requirement under Section 13-B(2) of the Hindu Marriage Act. During this period of 6 months, husband and wife can make efforts for reconciliation.
  4. If they arrive at a compromise within this period and decide to resolve their differences and decide to live together again, they can withdraw the joint petition filed by them.
  5. In fact, even one of the parties to the marriage, i.e., either husband or wife, can also withdraw his or her consent to the joint petition for divorce by mutual consent.
  6. However, if both parties are not able to resolve their differences and make a second motion after 6 months (but, it has to be before the period of 18 months), the Court will hear both parties.
  7. After hearing both parties in this manner, and after making such inquiry as it thinks fit, the Court, on being satisfied that a marriage has been solemnized and that the averments made in the joint petition are true, shall pass a decree of divorce declaring the marriage to be dissolved.
  8. The marriage will stand dissolved from the date of such decree passed by the Court.

Thus, divorce by mutual consent is advisable where it is impossible for the husband and wife to live together any more and where they have come to the conclusion by mutual agreement that it is better to dissolve the marriage. This process avoids the allegations made by either party against the other, which are usually seen in most matrimonial disputes. Divorce by mutual consent is a comparatively faster and easier method of getting the marriage dissolved when both husband and wife mutually agree to get the marriage dissolved. At the time of such mutual agreement, they should also amicably settle other issues, such as custody of children, disposal of common property, the alimony to be paid, etc.

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  • Sheetalkumar

    When the divorce is filed under mutual content under section 28 of special marriage act.
    Can both the parties after getting the decree file an appeal that they are not satisfied with it ? Will it be called Uncontested -CONVERT???? Or can they withdraw as 18 months are not completed??

  • N Ram

    Dear Sir,

    Wife is a citizen & husband holds PR in Canada. Married in India 2.5 years before & stayed together for 20 months in Canada. Stay in India less than a month. She walked out 7 months before & presently is in India.

    She, her parents & siblings are Canada citizens and he holds PR.

    She was involved in Fonancial infidelity as her foster parents misused her Credit card six years before marriage, he learnt only while applying for home loan in Canada. Asked her not to allow deposit of default amount in her name. Despite his advice she allowed to save her foster father.

    Her actual parents are in India, she was brought to Canada by her father’s elder brother by forging documents as his own daughter. There are another 15 members who were brought like this person, we have the record.

    This wouldn’t have bothered us but for the following:-

    Her Equifax( equivalent of CIBIL) score due to credit card default is 574(=10 % of worst in Canada).
    His score is 760, despite Home/vehicle loans in his name.
    Had to take loan alone: Loss 500×60= 30000$ in next 5 yrs
    He had to do 2 jobs as she can’t get more min Min wage job.
    He had to refuse promotion in Ist job, loss1000$PMx60= 60K
    Bought car in Jt name to build her credit. 500$x72= 36000$
    Her credit record will deprive her earnings1800x72=123600

    Total loss in next 6 years would be 2. 5 dollars, ie 1.25 crore in next years.

    Even that won’t have bothered, except she has filed case under 497a in India.

    Both parents incidentally are in Canada. She can file 498a & wait enernity!

    Other features:-
    No dowry taken, not even a Katori.
    No children.
    Separation being filed this month in Canada.
    Divorce will be filed on 366th day.
    She has legal right to half each of the house & car in Canada.
    Boy has nothing in his name to in India.

    How do we go about it?

    We are officer class, honest and gentlemen. They are a political cum farmer stock.

    Don’t want hassles, but are determined not to ever accept her.

    Sorry it’s a long write up, I appologize.

    What are our options.

  • vinodh kumar kakarla

    Hi Sir,
    I got married with Muslim girl we are happy but few days back their parents and myne came to me and taken her back to their home.We married in Aarya Samaz and Certificate has taken from Register office too.Now her parents changed her an now she is saying that she don’t want to come back.But I know that she is suppressed by her parents.I want to get her back.Please help me with the ideas.

    Now they are asking me to sign on the petition papers if I refused that in front of court is that possible to get back her again please help to get back her.

    Thank you

  • Vikram Verma

    Hello sir… Me and my wife has been married for almost a year and due to unavoidable circumstances we plan to take divorce on mutual consent… 2 things… My wife says she wanna get it done in UK where her brother and family lives… So will that be okay for me in India… Plus is there anything that she can put any case on me even after we file divorce by mutual consent..?

  • If the marriage has taken place in India as per Hindu laws, then it is advisable to file for mutual consent divorce petition in India. Any case on you means what? If the offence has taken place, then she has right to file it. If both of you have entered into a compromise which excludes her from filing a criminal case that occurred till that date, then generally speaking she may not file it, though there are instances when people do not keep their promises.

  • Ashish das

    Dear sir,
    me and my wife mutually agree to divorce by mutual consent and my question is that is there any liability after mutual divorce granted by court….? and thank you

  • Gilbert Cleetus

    Dear Sir
    I got married on may 2015 and due to some issues we are living separately after 20 days of marriage. We are planning to go for mutual consent. But I am in abroad and unable to come back soon because I joined in new firm one month ago, and I have given the power of attorney to my brother. Is it possible to file a mutual consent without my presence by my brother ? Or is there any other possible ways to get divorce without my presence ?

  • Abijith Mg

    Dear sir,
    My cousin sister is applying for mutual consent divorce. In the divorce petition is it wise to mention common property/alimony related agreement there? Thanks in advance.