Mutual divorce
2 years ago
I am married since 10 years and there is no kid. Because of lots of differences, I have decided that I will take mutual divorce from my husband.
Currently I am staying with my husband in the same house under same roof and we share the same bedroom too however we stopped having physical intimacy or sex since 7 months.
As I am aware that to get the divorce mutually a couple has to stay separate for minimum 1 year.
Because of the covid situation I am not going to my parents house and hence staying with my husband.
Here is my question -
- If I share the same bedroom with my husband, without any physical intimacy or physical relation as husband and wife, can I still apply for mutual divorce after 1 year of no physical relation ?
- Do I need to prove that we didn't have any physical or conjugal relation since 1 year in court for filling of mutual divorce ?
If yes, how to prove it ?
If both, my husband and I, say that we were not having physical relation since 1 year even after staying under same roof, will it be accepted as 1 year of separation which is a pre-requisite in mutual divorce ?
- suppose I stay in my husband house during mutual divorce filing. As address is required during filing , can I give the address my husband address or do I have to give my parents address as someone suggested during mutual divorce filing both husband and wife cannot show the same address of living ?
Will appreciate your help.
Ankur Goel @ Complete Law Shield
Responded 2 years ago
Yes, you can apply.
- Do I need to prove that we didn't have any physical or conjugal relation since 1 year in court for filling of mutual divorce ?
If yes, how to prove it ?
Just think that how somebody can prove it. There is no time machine to go back 7 months and judge can not allot 1 person to sit in your bedroom. You both have to give affidavit that you are living separately for more than 1 year.
- If both, my husband and I, say that we were not having physical relation since 1 year even after staying under same roof, will it be accepted as 1 year of separation which is a pre-requisite in mutual divorce ?
It is accepted until a women is pregnant.
- suppose I stay in my husband house during mutual divorce filing. As address is required during filing , can I give the address my husband address or do I have to give my parents address as someone suggested during mutual divorce filing both husband and wife cannot show the same address of living ?
You can use same address. Last month in one of our case during video conference both husband wife joined from their home in same camera.
Ayantika Mondal @ Prime Legal
Responded 2 years ago
In the sense of mutual consent divorce, “living separately” does not imply that the parties are physically apart. Even if the parties live in the same house and share the same roof, there will always be a gulf between them. SC has made it clear that living separately does not always imply living together. Filling out affidavits from all parties stating that they have not been conjugal/cohabitation in the previous year is appropriate and admissible in court.
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In the case of Sureshta Devi v. Om Prakash, the Supreme Court opined that the expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations. You can state the same in an affidavit and file a joint petition, there will be no issues then.
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You may file judicial separation application before Court.
Pardeep Kumar Dhiman Dhiman
Responded 2 years ago
Nishant Singh
Responded 2 years ago
You can file the case under Section 13(B) of HMA, which describes that in order to amicably, mutually dissolve a marriage, the husband and wife should be living separately for a period of at least 1 year before filing the first motion petition and this period of 1 year where the parties have lived separately must be immediately before the filing of the petition....
“Living Separately” in the context of mutual consent divorce doesn't mean physically living in different places. The parties could be living in the same house, sharing the same roof but there can still be a distance between the two.
The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi v. Om Prakash. Wherein it was made clear that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses.
Filling the affidavits by both the parties that they have not conjugal/cohabited since last one year is enough and admissible in the court.
You can file the petition with the same address and you can also add your another parental address on it.
It is advisable that drafting of Mutual consent petition under section 13(b1) and (b2) shall be full fill all the necessarily requirement as prescribed by the Act, 1955 (as amended).
Thanks with regards
Nishant Singh(Adv)
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