DIVORCE – MUTUAL CONSENT, HMA, 1956

Average Time

Six to Eighteen months.

Documents Required

Marriage Invitation Card

Certificate of Marriage (if registered)

One or Two Wedding Photographs

Address Proof of the Wife, if jurisdiction is the place the wife is currently living in

Address Proof of the Husband, if jurisdiction is the place the couple resided together before separation

Process

Section 13B of the Hindu Marriage Act, 1955; Section 28 of the Special Marriage Act, 1954 and Section 10A of the Indian Divorce Act, 1869 deals with divorce by way of Mutual Consent of the Parties.

Hindu Marriage Act is applicable to parties who are both Hindus and who have solemnized their marriage as per the Hindu rituals and have registered their Marriage under the Hindu Marriage Act, 1955

Special Marriage Act is applicable to parties who are inter-religious and who have registered their marriage under the Special Marriage Act.

Indian Divorce Act is applicable to parties who are both Christians and have solemnized their marriage and registered as per the Indian Christian Marriage Act, 1872.

Where can the Mutual Consent Petition be filed?

Mutual Consent Petition can be filed in the District Court/Family Court within whose jurisdiction; the marriage between the parties was solemnized; or where the parties last resided together as husband and wife; or where the wife is residing on the date of the Petition. However, the residence has to be proved by filing an address proof.

Prerequisite for filing a Mutual Consent Divorce

In order for the parties to apply for a mutual consent divorce under the Hindu Marriage Act and Special Marriage Act, the parties must have been living separately for a period of one year or more. The said separation of one year must be immediately preceding the presentation of the mutual consent petition. However, to apply for a mutual consent divorce under the Indian Divorce Act, the parties must have been living separately for a period of two years or more.

Procedure for filing a Mutual Consent Divorce Petition

Presentation of the Petition for Mutual Consent – The Parties must be present on the day on which the Mutual Consent Petition is filed.

Signature of the Parties in the Register – Once the Petition is filed in the Court registry, the parties will have to sign the Register in proof of having filed the divorce petition mutually.

Once the above procedure is completed, a date shall be given after six months, from the date of filing for appearance of the Parties in Court. It is important to note that, the statute provides for a period of six months to eighteen months as a period of interregnum which is intended to give time and opportunity to the parties to reflect on their decision to apply for a divorce. Therefore, a minimum mandatory period of six months is given to the parties for introspection and reconciliation, if any.

Procedure followed in Court

Appearance of Parties – Six months after the date of filing, on the date given, the parties will have to appear before the Court and the Judge will thereafter refer the matter for mediation on the same day or give a date which is convenient for the Parties. Thereafter, the Parties shall sign the Order Sheet of the Court and their Advocate shall verify the same.

Mediation – On the same day or on the given date by the Court for a Court mandated mediation, the Advocate shall get a mediator appointed in the presence of the Parties. The Mediator will determine if the decision for a divorce is final or if there is any scope for living together, depending on the decision of the Parties. If the Parties confirm their decision for divorce, the Mediator will draw a compromise petition and the Parties will have to sign the said compromise petition. Thereafter, the mediator will refer the matter back to court, as per the request of the Parties, either on the same day or on a date convenient to the Parties.

Appearance of Parties after Mediation – The Parties may appear before the Court on the same day after the Mediation (at or after 3 pm) or on the date given by the Mediator for appearance in Court. On this day, the Court will once again orally interrogate the Parties if they have wilfully filed the mutual consent petition and signed the compromise petition without any coercion and once the parties affirm to the same, the Court will pass an order for decree of divorce.

Parties to sign the Order Sheet – Once the order to pass a decree of divorce has been passed, the Parties shall sign the Order Sheet of the Court and their Advocate will verify the same.

Custody of the Child, if any

If the Parties have a child that is born out of the wedlock or adopted, can mutually decide the custody of the child along with visitation rights, if any, and record the same in the Mutual Consent Petition and in the Compromise Petition.

Exchange of Belongings between the Parties, if any

The Parties, if any belongings, money, ornaments, property etc., are to be exchanged between themselves or their family, may exchange the same either before filing the Mutual Consent Petition and record the said exchange, if any, in the Petition, or exchange the same before the Mediator and record the same in the Compromise Petition, or mention the said exchange in the Compromise Petition and physically exchange the same before the Judge in the Court Hall, wherein the same will be recorded by the Judge.

Notes

The above article does not deal with Muslim Law

The prerequisite of living separately connotes not living like husband and wife. It has no reference to the place of living. The parties may live under same roof by way of circumstances, and yet they may not be living as husband and wife.

The Supreme Court by way of its extraordinary powers as provided under Article 142 of the Indian Constitution can grant divorce without waiting for 6 months if it is satisfied that the marriage is irretrievably broken down. However, this power is restricted only to Supreme Court who can waive off the 6 months statutory cooling period.

In a mutual consent petition, it is mandatory for the parties to be present on all given dates. In case one of the parties cannot be present on a particular date, the advocate appearing for the parties, may seek time from Court.

A separate child custody petition need not be filed if the parties have recorded the custody rights in the mutual consent petition and in the compromise petition.

The Court procedure explained above is strictly applicable in Karnataka. However, it may slightly vary in other states.