Marriage is social institution which was conceptualised to bring in stability to the union of two humans, a male and female, so that they can start and carryon the family together. All the cultures have elaborated processes to affect marriage and this shows how marriage has been an important aspect of all civilizations across the globe. The rule makers understood the importance and gravity of this aspect of human society and thus almost parallelly in every culture we have more or less similar ways to tie two individuals together at the altar of marriage.
The marriage process and rituals were created by the wisemen, priests and elderly of the earlier society and with the codification of the laws and rules two individuals can unite and marry by following the prescribed rules and procedures. Thus, there are two ways to validate a marriage in Indian scenario- one by following the established rituals under the traditions of that society/caste/culture and second by following the legal procedure under the applicable laws. For getting married under the provisions of laws one has to be apply to Marriage Registrar as per the laws, governing the individuals, like Hindu Marriage Act or Special Marriage Act.
While marriage can be affected by both tradition and law the dissolution of marriage can only be affected through the mechanism of law. The reason for not allowing to have dissolution apart from the legal process is that if allowed then it can lead to arbitrariness and chaos in the society. Since marriage is an important pillar of civilized society hence strong rules and laws are made to control and allow the breaking of marriage. A broken marriage can create multifarious problems affecting the wife, husband, children and in-laws from both sides. It can have debilitating effect on the growing children causing mental trauma. The Courts in India and especially District and Family Court in Kolkata (where we practice) it’s been regularly observed that the courts pay attention to minute details in divorce cases to ensure that no arbitrary order is passed. In my personal experience I have observed that judges in Divorce cases in courts like Barasat, Barrackpore, Alipore and Family Court Calcutta take kin interest in sending the parties for mediation which might allow them to have a relook to the case and their relationship. It’s heart warming to see that the legal fraternity is more inclined in saving the marriage and thus the society at large than to let it degrade.
The District Courts in Calcutta and in nearby Courts like Barasat, Alipore, Barrackpore etc are witnessing a rising trend in divorce cases. On an average 500 plus cases are being filed per month and this shows that how this social institution is fading away with society getting more modern. Sadly, most of the cases are contested divorce cases where one party alleges certain wrongdoings and allegations to the other party and seek dissolution of marriage on that basis. Cruelty, both mental and physical, is the topmost reason for filing a contested divorce case in Kolkata.
When a contested divorce case is filed in a District or Family court then one needs to understand that it has to go through all the stages like a trial case. That means on an average the time taken for final order, considering the large volume of cases and procedure to be followed, can be more than 2-3 years. And if one of the parties is not cooperating then it can get elongated too.
In contrast to the contested petition the mutual consent divorce is fast, swift and has lesser hassles. A mutual consent divorce (MCD) on an average can be closed in 6 to 12 months depending upon the cooling off period being done away. It is common knowledge that filing and moving MCD is always beneficial and less painful added with the fact that it causes less financial burden as litigation cost.
Many a times when a contested divorce case is filed and parties have undergone the heat of the case, they do realize that it is not worth to fight it out in courtroom. To stop further mudslinging and mental torture they do decide to go ahead with mutual consent and dissolve the marriage fast. Once the parties have decided to let go the contested petition and move ahead with MCD then there are two ways to do it;
The petitioner can move an application under the above provision to withdraw the original contested petition and then file an MCD petition along with the other party for dissolution of marriage. This will be a twostep process- one to withdraw the original case, two to file a new case.
While the contested case is going on both the parties (husband and wife) can file joint petition under the same case to convert the contested petition into an MCD. The District Courts have discretionary powers to convert the case when a joint petition is moved by the parties. Hon’ble Calcutta High Court in Rajesh Lakhotia vs. Smitha Lakhotia, C.O. 3672 of 2013, clearly mandated that the District and Family Courts have all the discretionary powers to convert a contested divorce petition into mutual consent divorce when approached by both the parties.
When litigants have arrived at a conclusion that marriage cannot be subsisted further and contested case is causing damage to the family then they should approach their Advocates and seek their guidance in converting the case to MCD. That would certainly bring respite to many.