Based on the Hindu Marriage Act, 1955; filing a petition for a 'mutual divorce' would be appropriate if both you and your spouse are having to deal with marital issues and it has gotten to a point that both of you are looking for legal separation. You as a spouse can file for divorce even if the other spouse is unwilling to be divorced - this is known as, 'Contested Divorce'.
What is the meaning of Divorce by Mutual Consent?
According to the Hindu Marriage Act, 1955 both the spouses have the right to dissolve their marriage through a decree of divorce on several grounds specifically itemized in Section 13.
Section 28 of the Special Marriage Act, 1954 as well as Section 10A of the Divorce Act, 1869, permits divorce by mutual consent as well.
The necessary conditions under section 13B of the Hindu Marriage Act are as follows:
(i) The separation between husband and wife for at least a year or more.
(ii) It's impossible for both spouses to live together.
(iii) Both the spouses are of the opinion and in fact, have mutually agreed that the marriage cannot be salvaged at all and therefore ought to be dissolved. Under these circumstances, filing a Divorce by Mutual consent would be appropriate.
According to the Indian legal system, with the filing of a divorce petition, a divorce procedure fundamentally begins.
The place for filing a divorce petition:
1. The court in the location of the last residence of the couple before they got separated would have jurisdiction.
2. The court in the location of solemnization of the marriage would also have jurisdiction.
3. The court in the location of the wife’s current residence would have jurisdiction as well.
Based on The Hindu Marriage Act, 1955 both spouses have the right of dissolving the marriage if there are marital issues and either spouse can initiate divorce proceedings
The starting point of divorce proceedings in its entirety in India begins with the divorce petition filed by the concerned parties related to the divorce process and notice of the petition served to the other party.
Based on the Hindu Marriage Act, 1955; a 'mutual divorce' petition can be filed if both the spouses are going through marital issues and want to part ways legally.
Anyone of the spouses could file for divorce even if the other spouse is unwilling to be divorced - this is known as 'Contested Divorce'.
Step by step procedure in case of Mutual Divorce
Mutual Divorce Procedure to be followed
Step 1: Divorce Petition to file
At the outset, a petition for dissolution of marriage has to be presented to the family court by both spouses for a decree of divorce on the basis of not being able to stay together and therefore both spouses have consented to dissolve the marriage or they have been separated for at least a year or more.
This joint petition has to be signed by both parties.
Step 2: Court appearance and petition inspection
Both spouses would have to make an appearance before the family court after the petition has been filed and at the same time the spouses would have to present their counsels/lawyers. Upon critical observation of the petition along with all supporting documents by the court, the court may even try and reconcile the marital issues of the spouses. If that fails then the matter proceeds to the next level for even further follow-ups.
Step 3: Decree for a recording of statements on oath
Once the court analyses the petition and it's satisfactory, it may decree the statements of the parties be recorded under oath.
Step 4: Between the passing of the first and the second motion a period of six months elapses
With the statements of the parties to the suit already recorded, the court passes a decree on the first motion. Thereafter, both the parties to the divorce suit get a period of six months prior to filing the second motion. At most, it would take 18 months from the presentation date of the divorce petition in the family court.
Step 5: Second Motion and the Final petition hearing
The penultimate step is that once the parties have made a mutual decision to pursue the proceedings and be there for the second motion, final hearings may ensue which includes recording of statement of parties in front of the Family Court.
The Supreme Court recently has maintained that the period of 6 months allocation to the parties can be negated at the decision of the court. In other words, it’s the court’s discretion to override the six months’ time period.
Hence, the parties genuinely intending to reconcile their marital issues including alimony, child custody or any other outstanding issues, it can be waived off in these six months.
Even if the court’s opinion is that the longer the waiting period the parties would suffer more, in this case also the six months can be waived off.
Step 6: Divorce Decree
When the divorce is mutual, the consent is from both parties and therefore contentious matters related to alimony, child custody, maintenance, property, and so on are all taken care of or have been agreed upon by both parties. Therefore, a complete and absolute agreement between the parties is needed for finally deciding on dissolving the marriage.
After hearing the parties if the court is satisfied that what has been alleged in the petition are in fact true and that isn’t any possibility of the parties reconciling and cohabiting at all, the decree of divorce gets the court’s seal of approval, and the divorce is final.
This blog is all about the divorce procedure explained step by step. Anyone reading this blog would be able to clearly understand the divorce process.
If you’re filing for a divorce and haven’t got a clue as to how long it might take, or what might be the steps or procedures involved. Get in touch with Vidhikarya who would find the expert divorce lawyers for you.
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