Divorce by mutual consent.
Divorce is the process of putting an end to the marital union of two married individuals. It usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state.
Divorce under Hindu law are of two types.
1. Contested- Here one spouse decides to get divorced from the other on the grounds mentioned under sec 13 apart from sec 13(b) of the Hindu marriage act , 1955 . Either the husband or the wife files a suit for divorce in the nearest District court where the parties are residing. The grounds for contested divorce can be adultery, cruelty , conversion to other religion, civil death etc. Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive, and the parties will have to pay for a lawyer's time and preparation. In such a divorce the spouses are not able to agree on issues for instance child custody and division of marital assets. In such situations, the litigation process takes longer to conclude. The judge controls the outcome of the case.
2. Mutual Divorce - Sec 13(b) of The Hindu Marriage Act explains the process of divorce by mutual consent. Here a petition for divorce by mutual consent may be presented jointly by both the spouses with the following averments. :
A. That they have been living separately for a period of one year
B. That they have not been able to live together ,and
C. That they have mutually agreed to live separately.
For instance, if the husband and wife have been living separately for a period of one year or more and are further unable to live together, and both have mutually agreed that the marriage has totally collapsed, they can be granted the divorce.
Research says that one of the fastest ways of being granted a divorce in India is through mutual consent as other options linger on for too long. The law says that all marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 can be annulled, provided the parties to marriage consent for the same in front of the court.All the above conditions should be fulfilled before divorce can be granted.
Step by step procedure for filing divorce under Mutual consent.
In order to get the divorce under mutual consent , the following steps are to be followed.
1. Joint petition - The very first step for filing a divorce petition by mutual consent is to present a joint petition before the Honourable Court . One party can be called the Petitioner and the other to be called the Co- petitioner. The time since when the parties are living separately from each other and that the presentation of this petition is out of no coercion or undue influence has to be specifically mentioned in the petition.
Along with the petition, address proof of both the spouses, an affidavit and verification of both the petitioner and co- petitioner and a vakalat nama with a bar sticker with a court fee of Rs 100 /- (hundred) , photograph of both petitioner and co- petitioner and a copy of marriage certificate has to be submitted in the filling department of the specific court where the parties are residing. The joint petition is to be signed by both the parties.
2. Appearance of the parties - The second step is the appearance of both the parties at the concerned family court after the filing procedure is completed. The court fixes the day and calls both the parties to present themselves before the court on that concerned date .
3. Scrutiny of the documents - The court goes through the petition and scrutinizes the documents filed by the parties. On being satisfied, the court records the statement of both the parties. In some cases the court brings about a reconciliation between the parties , and the process of divorce stops then and there whereas in other cases where the court fails to bring about reconciliation between the parties , the divorce process continues.
4. Cooling off period - After the statement of both the parties been recorded , the court gives a date not less than 6 months. Order of first motion is passed then. The court mostly gives this time to the parties to bring about a reconciliation between them.
5. Second motion - After the passing of the first motion, the parties appear before the court on the date that was given. The court records the statement of both the parties and if satisfied, grants divorce and if not , gives a day after 6 months but not less than 18 months from the date of filling for second hearing and the final hearing. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.
6. Final Hearing and passing of the order of divorce - Upon the basis of the statements recorded by both the parties and the facts and circumstances of the case, the court on being satisfied that the divorced is being claimed not out of any coercion or undue influence and that there is absolutely no chance of reconciliation between the parties, the order of divorce is given.
Is the cooling off period mandatory ?
Some courts held that the requirement of waiting of six months is mandatory . Some high courts do not share this view . A Hindu married couple may not need to wait six months for a separation order in case of mutual consent and the marriage can be legally terminated in just a week as the Supreme Court on September 12, 2017, held that the "cooling off" period is not mandatory and can be waived off.
The court ruled that the stipulation under the Hindu Marriage Act for a six-month wait can be done away with if all efforts for mediation and conciliation intended to reunite the parties fail. The waiving off can be considered if the parties had already lived separately for at least a year. In such situations, the court could take a view that delay in proceedings will only prolong subsequent resettlement.
The object of the cooling off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled.
A bench of Justices A.K.Goel and U.U.Lalit, after examining all the issues, came to the conclusion that Section 13B(2) was not mandatory but directory. It said that the concerned court was to waive off the six-month period after being convinced that the parties were living separately for more than a year with no chance of reconciliation and further waiting period would only prolong their agony.
Is personal appearance of the parties mandatory. ?
The Punjab and Haryana High Court has held that it is not necessary. The parties can be represented by their duly appointed attorneys. Also while passing the decree under this section the court has to be satisfied that the consent was not obtained by force, fraud or undue influence.
Is a decree under this provision appealable. ?
It is, according to Susma Pramod Taksande vs Pramod Taksande . The question raised was that since decree under this provision is like a consent decree, it is not appeal-able . But it was held that since Sec 28 of the Hindu Marriage Act gives a right to appeal against all original decrees passed under this act by the trial court it is.
Maintenance and child custody
When two spouses decides to get divorced mutually then the amount to be given for maintenance and the custody of the child has to be decided by the parties prior to the submission of the petition and the decision by the court will be given in accordance with that.
Mutual divorce is the easiest and the fastest way to get rid of the marital ties that a married couple share. The maximum time that can be taken for a mutual divorce to get granted is 18 months. Regardless of the procedure and the time taken, you still would require an experienced lawyer to get this done as he/ she will be able to guide you better and represent you in the court.
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