28 Aug Divorce by mutual consent
In our Indian society, marriage is presumed to bind two individuals (and families) in a sacred bond. Marriage is a relation between to person who is compatible to each other in order to live together but sometimes, marriage between incompatible person leads to conflict and disturbance in their lives.
Therefore, in order to avoid the conflict in the lives of spouse, Section 13 of Hindu Marriage Act, 1955 provides a simple way of putting an end to a marriage and dissolves it legally by means of Divorce.
Grounds for divorce by mutual consent
Section 13B was inserted in the Hindu Marriage Act in year 1976 to introduce the concept of Divorce by mutual consent and its grounds. Hindu Marriage Act provides following grounds which have to be met to seek divorce by mutual consent:
- Both the parties have been living separately for a period of one year or more.
- They have not been able to live together.
- They have mutually agreed for the dissolution of the marriage
Different laws of divorce for different religions in India
The concept of Divorce for different religion varies from law to law such as divorce regarding Hindu religion (which includes Sikh, Jain, Buddha) is governed by Hindu Marriage Act, 1955.Christian religion is governed by Indian Divorce Act-1869 and The Indian Christian Marriage Act, 1872.
Muslim religion is governed by Personal Laws of Divorce and also the Dissolution of Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce) Act, 1986. Similarly, Parsi religion is governed by the Parsi Marriage & Divorce Act-1936 and there is also a secular law called Special Marriage Act, 1954.
Divorce Petition under Section 13B of Hindu Marriage Act
Spouses can file the Divorce Petition jointly before the Family Court having jurisdiction where the marriage was solemnised or the Respondent resides at the time of filing the Petition or the place where both spouse last resides together.
Necessary Documents to file Divorce Petition
- Marriage Certificate
- Address Proof – Husband and Wife
- Four Photographs of Marriage
- Income tax Statement of last 3 years
- Details of profession and Income (Salary slips, appointment letter)
- Details of Property and Asset owned
- Information about family (husband and wife)
- Evidence of Staying separately for an year
- Evidence relating to the failed attempts of reconciliation
Procedure to file Divorce Petition
- Step 1: Filing of the Petition in the Family Court
Joint petition for dissolution of marriage is presented to the Court by both the parties.Before filing the petition, married couple ought to certify that they are living separately for a period of one year or more.
- Step 2: Appearance before the Court for First Motion of Divorce
In the first motion of the divorce, both parties have to appear in the Family Court together with their legal counsels. Upon appearance of both parties, the court will examine the contents of the petition along with all the documents presented in the Court. Court may try to reconcile the conflicts between the spouses, however, if this is not possible, the matter proceed further.
- Step 3: Statement on Oath
Upon perusal the Petition as well as documents, the court will pass an order to record the statement of both parties on oath.
- Step 4: First Motion order is passed, 6 Months period is given for the Second Motion
After recording the statement of both parties, the court will pass an order on the first motion. Later on, last six month’s period is given to both parties to reconcile their disputes before they can file the second motion. The maximum period to file for a second motion is eighteen months from the date of presentation of the divorce petition in the court.
- Step 5: Second Motion hearing and Final Decree
The last step to dissolve the marriage is second motion. Upon filing the application of second motion, the court shall hear both parties and if the court is satisfied that there is no possibility for reconciliation and cohabitation and also the issues regarding alimony, custody of children, properties etc. are already settled, the court shall pass a decree of divorce declaring the marriage to be dissolved.
In cases of divorce by mutual consent, both parties will enter into the settlement deed where they decide certain conditions which are binding on both parties, therefore usually, the amount of alimony/ maintenance is also decided by the party.
Maintenance is generally decided on grounds such as lumpsum amount or such monthly or periodical sum for a term not exceeding the lifetime of the applicant by keeping in mind respondent’s own income and other property.
Since, the marriage is dissolved by mutual consent; it is agreed between the parties in the settlement deed that who will hold the custody of the child. It is pertinent to note that the court should give the custody of the child to any party by keeping in mind the interest and wish of the child.