When both the spouses have decided that the marital bliss is no longer a part of their marriage and want to part ways without going into much hassle and the blame game then mutual divorce under Section 13-B of the Hindu Marriage Act, 1955 comes to their rescue. Unlike the contested divorce which takes years to get concluded, a mutual divorce is not only hassle free but also expedient as it serves the purpose within a maximum of six months sans tedious court visits and associated proceedings. It is undoubtedly the quickest way to end a marriage in India; however, as the name suggests the will to take divorce should be mutual between the parties. If a couple is looking for a legal separation without fighting and long battle in ligation, mutual consent divorce is the best way to go through. The consent divorce is for all the Hindus, Buddhist, Jain or Sikhs.
Essentials of a mutual divorce:
- Free consent of both the spouses
- No scope of reconciliation or adjustment possible between the parties.
- Terms of settlement
- One year of separation- mental and/or physical
- Any party can withdraw the mutual divorce petition in six months from the date of filing of the petition
It is essential that the parties show that they have been residing separately for at least one year or more before filing for a divorce petition. However, if the parties are residing under the same roof for certain reasons need to assert that they have been mentally and emotionally separated since a year and though they live under the same roof; they have not been living as husband and wife, i.e. they are not performing any of their marital obligations.
Once the suit for mutual divorce is filed in the competent court, the statements of both the parties are recorded in the first motion before the court. The court then grants a time-period of six months for the second motion, and the couple needs to visit the court after the said six months for making a second statement that confirms their decision mutual consent divorce. The focus point is that the court with grant divorce only after the second motion.
Another important fact is that if any of the spouses during the said six months when the petition is pending in the court, can file an application stating that he/she does not wish to seek divorce under mutual consent and that they want to withdraw the divorce petition.
Steps in Mutual Divorce
- A JOINT PETITION signed by both the parties is filed in the court. A settlement deed outlining the terms and condition of the said divorce is also attached to the petition.
- APPEARANCE OF THE PARTIES in the court.
- Once satisfied with the petition, the court orders for the recording of statements on oath. Thereafter, an order on the first motion is passed, and a period of six months is given after which second motion is filed within a period of 18 months from the said first motion.
- The essential part of mutual divorce is the free consent of both the parties.
- After hearing the recorded stamens and many attempts of failed reconciliation, the court will pass a decree of the final divorce.
The most significant advantage of a divorce by mutual consent is that it eliminates all needless quarrels and saves the time of the parties. The parties can file for mutual divorce in the court of competent jurisdiction of their matrimonial home, in the courts of the city where the marriage was solemnised or the city where they both last resided.