Divorce by mutual consent as per Indian Law

18
1659

Divorce by mutual consent as per Indian Law

India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955.

8411784_sA Hindu marriage cannot be dissolved by compromise or consent except to the extent expressly permitted under section 13B of the Hindu Marriage Act, 1955.

Insertion of Section 13B in the Hindu Marriage Actwas made perhaps as a response to an overwhelming demand in society for such a provision.

The felt necessities of our changing society require that there should be no insistence on the maintenance of a marriage which has broken down and thus a marriage in which parties cannot live together should be dissolved.

 13B.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, (68 of  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 thy have mutually agreed that the marriage should be dissolved.

 

(2)  On the motion of both the parties:

The parties made no 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referred  to  in  sub-section (1) and not later than eighteen months after the  said  date,  if  the petition is not withdrawn in the  meantime,  the  court  shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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.

However, not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such cases, one party files for divorce in the court, but the other contests it. This forms the case for the filing of a contested divorce.

A mention must be made in the petition that the parties have not been able to live together and have been living separately for a period of at least one year. This period is mandatory.  Therefore, no application for divorce by mutual consent can be filed within a period of one year from the date of marriage.

Petition under section 13B must also mention that the parties have mutually agreed that marriage should be dissolved. This statement is also mandatory. The petition under section 13B should be filed only after both the parties appreciating their circumstances come to the conclusion that they cannot live together as husband-wife.

This conclusion must be arrived at independently by both the parties to the marriage and without any coercion of pressure. The decision to get the divorce should be only theirs and the application cannot be filed if one of the parties is not ready for divorce or if the parties are filing the application on someone else’ instigation.

A petition for mutual divorce once presented before the Court of District Judge is taken up on the motion of the parties only after a period of six months has expired from the date when the petition was first presented before the Court. For instance, if the petition was presented on 01/01/2013, it will be taken up by the Court on the motion of the parties made after the expiry of at least six months.

Therefore, the parties can move their motion for the taking up of their petition only on 02/07/2013 and not earlier. However it is to be remembered that this motion should be made after six months from the date of presentation of the petition but before the expiry of 18 months from the said date, i.e. the date of presentation. Hence in the above example as has already been stated, the parties can move a motion for taking up of their petition only on or after 02/07/2013 but this motion must be made before the expiry of 18 months from the date of presentation, i.e. before 01/07/2014.

The Court has to be satisfied that the parties cannot live together as husband-wife and also that the petition is filed only as per the prescribed time and that both the parties have filed the petition voluntarily with their respective free consents and not under any fraud, coercion, undue influence or force and only after fully understanding the implication.

Once the Court arrives at this satisfaction, decree of divorce under section 13B shall be passed in favour of the parties. The Supreme Court has held that mutual consent must continue till divorce decree is passed and revocation of consent by either of the parties at any time before the decree is passed is fatal to the proceedings [AIR 1992 SC 1904].

18 COMMENTS

  1. Hello sir me ghatkopar me raheti hu aur meri 10 months ki beti he aur mere husband muje 3 saal se choad ke apne mom dad k sath rahete he aur ab me unse divorce mangti hu to vo nahi de rahe aur mere pas rahene khane k paise bhi nahi he mere mom dad bho itne capable nahi he ki muje apne sath rakh sake aur 3 saalse me bhada bharke akeli rahe rahi hu to please aap muje ese koi vakil ya help suggest kare jo meri madad kar sake please. Thank u

  2. can i apply a divorce from Muscat , i have got married in Kerala..if i come to apply for a divorce, my parents says that they will not allow me to come back to muscat. here i hv a good job an settled, i drive n hv a vech of my own too,,,n settled here since 12 yrs. i cnt cm to india n get settled..Please advice

  3. As me & my wife got love-married in 2005 and later after had a baby girl in 2008 and live happily upto 2010 but later after quarrels started & my Mrs. taking doubts on me for extra marital affairs and left home (also other things happen in between) & she return with baby girl but now again she left home with my daughter & all her belongings & things given by my parents (Stridhan, gifts, land, vehicle) and asking for mutual divorce by taking same doubt. But she always left home in my absence & now my daughter is in primary school & she take her away without my consent. Her father helping her in this all & also threatening me that will harm me & my career by police complaints. I just want to know that how can i get my daughter custody as i love her lot & dont want to spoil her career OR can i meet her by law as they are not allowing us to contact my daughter.

  4. Hi,

    I was married on 23rd Jan 2013 its almost one year.Earlier everything was fine But Now me and my husband fighting with each other.I want to know if both the parties are ready then In how many days I will get divorce from him.And also I want to know If I will Apply for divorce then i will get maintainace or not.

  5. I would like to know that what happen on first date of motion???
    Whether husband and wife need to sign in fornt of respective advocate or infront of court???

    Wanted to know about detail procedure of 1st day of motion in court

  6. As me & my wife got love-married in 2003 and later after had a baby girl in 2006 and live happily upto 2013 but later after quarrels started & my Mrs. taking doubts on me for extra marital affairs and left home (also other things happen in between) and asking for mutual divorce by taking same doubt. But she always left home in my absence & now my son is in primary school & she take her away without my consent. Her father helping her in this all & also threatening me that will harm me & my career by police complaints.
    I am from kolhapur maharashtra please tell me what i may suppose to do in this case

  7. sir,

    pls help me mari shadi ko 7 to 8 saal ho gya hai.hamara suprem court sa aak baar mutual understanding ho gye hai.but mutuial understanding hona ka 1 month baad hi wo apna mammy ka ghaar chali gye hai aur ahi taak aak saal ho gya hai usna aak baar bhi mujsa ya mara parivar walo sa kisi bhi tarika sa contact bhi nahi keya.maina aak baar koses ki phn par but wo kuch nahi bolti hai.pls bataiya keya muja divorce mel sakta hai bena kise problem kai keya section 9 ka case karu ya pher sedha divoce.pls suggest me im always tnx full to u.pls reply asap i waiting ur reply.tnx a lot

  8. Sir
    What should I do ? It’s been one year o my marriage I m living alone after 3 months of marriage. Becoz my husband started beating me. I didn’t filed any case.but now after one year my husband filed divorce. But I don’t have enough money which I can pay to lawyer .even I m working but my salary is 10000 only . What should I do

  9. Sir, it has been 6 years of my marriage. Before two years, my wife filed 498 & domestic violence against me.I have two children aged 3 &4 years but they are with my wife. Now I have filed for divorce but she is not agree. How can I get Divorce from her. Please suggest and help so that I can save children’s career????????

  10. I am going through mutual consent divorce. We lived together for just 2 months and no children are born out of this marriage.
    We have agreed to pay the girls family 6 Lakhs. Girl is currently working and well-qualified. My father-in-law says he doesnt want the words alimony/maintenance in the divorce document.He is OK to use the words “one-time settlement/Compensation for marriage”. He is also OK to include the phrase “the girl will not ask for any future alimony/maintenance”. Is this OK to file the divorce document with such phrases or can they come back later and claim maintenance and also get it ?

  11. We just completed one year of our marriage on 18th Nov’14. During this marriage we lived together 4-5 months only. Rest she lived in my father-in-laws house only. Now she didn’t respond…not even taking my calls. No one from their site taking my calls. How should I file for divorce?

This site uses Akismet to reduce spam. Learn how your comment data is processed.