Past trauma of marriage and divorce

Dear Client,
Section 14 of the Hindu Marriage Act states that no one is allowed to file a petition for divorce within one year of their marriage. Section 13B of the H. M. Act provides for divorce by mutual consent. As per Sec. 13B(1) of HMA, the essential ingredients for filing a mutual consent divorce petition are 1. The parties have been living separately for a period of one year or more. 2. They have not been able to live together. 3. It was mutually agreed that the marriage should be dissolved. Documents Required For Mutual Divorce include a copy of the marriage certificate, a copy of the address proof of both parties, a copy of the income proof of both parties, a copy of the birth certificate of any children of the marriage, the Memorandum of Understanding (MoU), and the joint divorce petition. The primary purpose of an MOU (Memorandums of Understanding) in divorce proceedings is to provide a clear, enforceable understanding of what each party has agreed to before formalizing the divorce and such MOU should be well-informed and well-drafted by an expert counsel. Once the MoU is finalized, the couple can file a joint divorce petition in the Family Court. As per Sec. 13B(2) of the Act, after the presentation of the MCD petition, a cooling-off period of not less than 6 months allowed but not later than 18 months on motion of both the parties. However, a mutual consent divorce can be completed earlier if the Hon'ble Judge waives the six-month waiting period or cooling off period. The time period for filing a waiver application is one week after the first motion giving reasons for the prayer of waiver. In the landmark Judgment of Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, it was held by the Hon’ble Supreme Court that if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. It has also been held that the period mentioned in Section 13B(2) of HMA is not mandatory but directory, 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 no chances of alternative rehabilitation. Until and unless a marriage is annulled by a decree of divorce, neither spouse can remarry. The Hon'ble Punjab and Haryana High Court have held that a couple living together without divorcing the earlier spouse does not fall within the definition of a "live-in relationship" or ties in the "nature of marriage". The court also said it constitutes an offense of bigamy under Sections 494/495 of the IPC (Sections 82(1) & 82(2) of BNS) that attracts punishment of imprisonment for seven years or more, depending on the severity of the crime. So, it is advisable to get the MOU well-drafted and process the MCD petition by an experienced Advocate to navigate all the issues in the right way.