What is Mutual Consent Divorce?
Divorce is the legal dissolution of a marriage by a court or other competent body. The institution of marriage plays an important role in society despite the ever-increasing flood of divorce proceedings in family courts across the country.
Mutual Consent Divorce is the quickest form of divorce for an irreparably broken marriage. It is the divorce sought and obtained from the family court by consenting spouses, preferably by filing a joint petition.
Divorce is normally sought only when the husband and wife do not want to live together in a matrimonial relation any longer.
The easiest form of divorce
Mutual Consent Divorce is the easiest, cheapest, and fastest form of divorce. It is a stress-free way of getting divorce.
It normally takes six to eighteen months to get a decree. If both the parties do not agree for divorce within eighteen months, then the petition will automatically get dismissed.
Legal provision on mutual consent divorce
The Hindu Marriage Act, 1955 (HMA), in its Section 13B, provides for dissolution of marriage by mutual consent.
Any Hindu marriage solemnized before or after the date on which the section is brought to force (it came into force on 27 May 1976) can be dissolved by the court based on a joint petition of both the spouses, provided the mutual consent obtained is based on free will, but not by any force, fraud, or undue influence.
Going ahead with divorce
At the outset, the spouses should talk to each other about the future course. If both spouses reach out to a conclusion that marriage has irretrievably broken down and they want to break apart as smoothly as possible, then Mutual Consent Divorce is the easiest way to get divorce and to avoid a futile, long drawn litigation.
Workout the agreement before filing the petition
Before filing of the petition, both the spouses should come to mutually agreeable terms and conditions regarding alimony, maintenance, custody & upbring of children, and such other allied matters, on their own.
Child custody is an important matter
In case of children, the spouses should decide as to what kind of child custody they prefer, who is going to have the physical and legal custody of them, what the visitation rights are, and such other matters. The welfare of the minor child/children is the paramount issue to be considered by the court in allowing child custody.
As per law, both parents are equally competent to take the custody of the children. It is the mutual agreement between parties which will prevail. Parties can agree for joint custody or shared parenting in mutual consent divorce based on the ultimate interest of the child.
Settle the financial matters in between them
Settlement of financial matters is the next important item. They include alimony, maintenance, house, educational expenses, marriage expenses, dowry, joint investments, joint accounts, and such other matters.
In the joint petition for divorce, it is preferable for the petitioners to the court that all the claims between the parties are settled and no claims between them remain unsettled. The spouses can include the agreements arrived at between the parties as part of their petition
Place of filing the petition
The parties can file the joint Mutual Consent Divorce Petition (or even separate petitions) in the Family Court of the concerned area or district, at any of the following places: –
- Place where marriage had taken place
- Place where husband and wife last resided together
- Place where wife is residing at the time of filing of the Petition, or the
- Place where the respondent resides when filing the petition
When filing the petition please attach the photos and identity proofs of both the parties, an affidavit stating that the contents of the petition are true and a Memorandum of Understanding arrived at between the parties regarding child custody, maintenance, property sharing or such other mutually settled matters.
Divorce petition can be filed only after one year
Mutual Divorce petition can be filed only after living separately for one year or more, since the date of marriage, as per Section 13B of the HMA.
The essential ground for mutual consent divorce is that the parties have been living separately for a period of one year or more and they have not been able to live together.
No court has any authority to accept any divorce petition before completion of one year of marriage, unless there is exceptional hardship or depravity that may occur to the parties.
Petition can be filed before one year in exceptional cases
However, a petition for divorce can be filed before completing one year of marriage, under Section 14 of the HMA, if the marriage is of exceptional hardship on the part of the petitioner or of exceptional depravity on the part of the respondent.
Some judgements of the Suprem Court (SC) say that filing of divorce petition before completion of one year is not applicable in mutual consent divorce, as the purpose of one year is for reconciliation of differences between them.
Therefore, waiving of one year period must be allowed only in extremely genuine cases.
Procedure for filing a petition
Any petition to the Family Court regarding Hindu Marriage Act shall be filed by following the rules and procedures stipulated in the CPC (Order VII Rule 1), Section 20 (1) of the HMA, and the Rules framed by the High Court of Kerala to regulate proceedings under the HMA.
The CPC provides the provisions as to who can file a petition, what all materials to be included in a petition, how to provide evidence, procedure for hearing & judgement, where and how to file an appeal or review, when a party wants to file one against the judgement.
Every petition shall distinctly state the facts on which the claim to relief is grounded, and that there is no collection between parties in filing the petition.
An affidavit in support of the pleadings is also to be furnished along with the petition
Every petition shall be verified at the foot by the party or person acquainted with the facts of the case. In the verification the party shall specifically verify which fact is being verified based on his own knowledge, and which fact is being verified on the basis of information received or believed to be true.
First motion before the family court
On submission of a petition, both parties will have to appear in person and make statements in support of the petition before the court on oath.
The court will conduct an inquiry to satisfy that marriage was solemnized between the parties and that the facts stated in the petition, including the conditions of settlement between the parties, are true. The court will record the statement, including the conditions of settlement, of the petitioners. It is commonly called First Motion.
Then the court will grant six months cooling-off period to the couple to reconsider their initial decision and come to a firm conclusion based on what they think and feel during the interlude of separation.
During the period of six months, both parties have liberty to withdraw their consent for divorce and can continue their matrimonial life as usual. Otherwise, they can proceed with the petition to legally end the marriage.
Second motion before the court
After the expiry of cooling off period of six months but within eighteen months on the date fixed for appearance of parties, the couple will have to reappear before the court to state their resolve in regard to their divorce. That is commonly called Second Motion.
However, the HMA speaks only about one motion to be made in between the six and eighteen months after filing the petition, under its Section 13B (2), but two motions are in vogue in some states.
After moving the second motion, the court is convinced that the parties are firm in their stand and the nature of relationship is not fit for reconciliation, the court will make necessary inquiries as to the facts, and may allow decree of divorce. Then the marriage gets dissolved.
The parties can withdraw the consent at the time of filing the petition at any time before passing the decree and if so, the court cannot issue a divorce decree based on the strength of the initial petition alone.
Waiving of six months cooling period
The purpose of providing the cooling period, as stated above, is to enable the parties to rethink, reconcile and rework their failing marriage relation.
But when the perpetuation of matrimonial relation between unwilling parties serves no purpose, it is quite unnecessary to keep six months cooling period as mandatory. If the parties are separated for a longer period than the six months, the family court has ample power to consider waiving the period.
In normal case, the six months cooling period in between the first motion and second motion for passing a divorce decree is mandatory but the family court can waive the cooling period in exceptional cases based on a catena of cases.
SC judgements on waiving of six month’s cooling period
In Amardeep Singh v Harveen Kaur the SC states that if the Family Court is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :
- the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
- all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
- the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony.
The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver and the waiver of the waiting period for the second motion will be in the discretion of the concerned court.
The SC adds that it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
In 2021, the SC in Amit Kumar v Suman Beniwal, a two-judge bench held that in addition to the factors mentioned in Amardeep Singh case, the court should also ascertain whether the parties have freely, on their own accord, and without any coercion or pressure arrived at a genuine settlement regarding alimony, maintenance, custody of children, etc.
Representation by power of attorney
In Mutual Consent Divorce, the spouses will have to present themselves before the court to record their statements for the first and second motions. But if any party is unable to come because of some subtle reasons, he/she can appear before the court through holder of a power of attorney, who may preferably be a family member of the spouse.
The family court has discretion to allow use of video conferencing when the parties are unable to appear in person.
NRIs can file petition in India
The Non-Resident Indians (NRIs), who got married in India, can also file a petition for mutual divorce in India.
The couple can also file a divorce petition in a foreign country, under the law of that country in which the spouses reside. The decree passed by a foreign court is conclusive as per Section 13 of the Civil Procedure Code, 1908.
Divorce before Notary invalid
No Notary, designated under Indian Notaries Act, 1952, has power to grant mutual divorce under any provision of Indian law.
Any marriages governed by the Hindu marriage act can be dissolved by mutual consent only through the proceedings of a family court and its decree, but by no other means.
Resettle the lives, when marriage is unworkable
A Family Court, having jurisdiction, alone can grant a mutually agreed divorce in India. After a decree of divorce, the parties in the marriage will be restored to the legal status prior to that of their marriage.
When the marriage is totally unworkable, emotionally dead, or beyond repair there is no point in keeping the marriage any longer. Then the only possibility or right solution is to dissolve the marriage and resettle their lives.
That exactly is the precise objective of Section 13B of the Hindu Marriage Act.
Additional reading
- Hindu Marriage Act, 1955
- The Family Court Act, 1984
- Rules Framed by the High Court of Kerala to Regulate Proceedings under the Hindu Marriage Act, 1955
- Civil Rules of Practice Kerala
- Amardeep Singh v Harveen Kaur.
- Amit Kumar v Suman Beniwal
