Divorce by Mutual Consent

Marriage is a bond between two people who agree to spend their life with each other. It’s a bond of love but sometimes it becomes difficult for the couple to carry it forward and thus because of the felt necessities of our changing society the concept of ‘divorce by mutual consent’ has evolved for a smooth dissolution of marriage. The Hindu Marriage Act, 1955 under section 13B and The Special Marriage Act, 1954 under section 28 provide the provision for divorce by mutual consent.

Pre-Conditions to obtain a divorce by Mutual Consent:

1.    The husband and wife should have been living separately for a period of one year or more immediately preceding the presentation of the petition. The term ‘living separately’ connotes that the couple has not been living like husband and wife and it has nothing to do with the place of living. They could be living under the same roof but should not be performing marital obligations. This is called notional separation and is as good as living at different places for one year. This period of one year has been mandatory and thus an application for divorce by mutual consent cannot be filed within a period of one year from the date the marriage was solemnized.

2.    This period of one year can be waived off by the Supreme Court in the case of exceptional hardships which generally is not granted unless situation is grave and exceptional.

The Supreme Court in Shilpa Shailesh vs. Varun Sreenivasan bearing Transfer Petition No. 1118 of 2014 invoked Article 142(1) of the Constitution of India and granted a mutual consent divorce to the parties. The Apex Court also held that the Supreme Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy.

The Supreme Court held that the said Court can dissolve the marriage when the Court is convinced that the marriage has completely failed and there is no possibility that the parties shall cohabit together; that both husband and wife have mutually agreed that the marriage should be dissolved.

Obtaining divorce through mutual consent is advantageous over a conventional divorce that involves allegations & proving fault of the other party as it saves both time and money. As far as divorce by mutual consent is concerned the parties execute a Memorandum of Understanding/ Settlement Agreement wherein the terms of settlement are agreed between the parties and formalize the same by way of the said documents for obtaining mutual consent divorce.  

The petition of Mutual Consent divorce can be drafted by the counsel of either of the parties since the terms are pre-determined.

The issues mentioned below must be settled amongst others between the parties prior to the filling of the petition for divorce by mutual consent since whatever is mentioned in the petition regarding any of the below will be binding on both the parties.

• Custody / visitation rights of Children
• Lump Sum Maintenance amount of Wife
• Litigation Expenses

In case the above issues exist & are made in the mutual consent divorce petition, these become legally binding & can be enforced lawfully, should the need arise at a later stage.

Territorial Jurisdiction

Such joint petition is usually required to be filed before the District Court within whose jurisdiction the marriage was solemnized or where both the parties last resided together. The presence of both the parties at the time of first motion and the second motion is mandatory and there is no exception to that.

Procedure for filing mutual consent divorce:

The filling of petition for divorce by mutual consent has been divided into two motions:

• The First motion: The filing of divorce petition by both the husband and the wife is legally known as the "The First Motion Petition for Divorce by Mutual Consent". This would be a joint petition (filed by the husband and wife jointly) stating when the marriage took place, since when the husband and wife are living separately, brief reason why they cannot continue to stay together and the fact that they should be granted a divorce by the Court.
• The second motion: "The Second Motion Petition for Mutual Consent Divorce" mentioned in the sub-section (2) of Section 13 B is filed when the couple reappears to the court for the second time after a period of six months. This period of six months is given to the couple for reconciliation as the estranged couple might change their mind.

Petition for mutual consent divorce through Power of Attorney Holder

The Petition can also be preferred through a Power of Attorney Holder upon execution of Power of Attorney. The POA Holder has to be a person who can take decision on behalf of the party. A copy of such Power of Attorney executed has to be filed along with the petition.

If the court is satisfied that all the necessary grounds and requirements for the divorce have been complied with and after hearing both, the husband and the wife, the court may announce a mutual divorce decree once the period of six months is over.

If the couple fails to appear in the court after six months and not later than eighteen months from the date of first motion, the divorce petition becomes null and void. Either of the couple can withdraw his/her petition within the six months term.

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