Mutual Consent Divorce in India


Posted On : March 11, 2022
Mutual Consent Divorce in India
When marriage comes to climax, it is the end of a consensual decision of staying together for a lifetime between the husband and wife. But when there is no love to linger on, things may turn ugly if one of the spouses seeks divorce while the other wants to continue the relationship. Usually, the death of marriage is realised by both the husband and wife. But there are individual reasons on why one of the spouses does not consent for mutual divorce and things get difficult for both. This bitter experience may be turned a bit bland by opting the smoother path of mutual divorce. Although mutual consent divorce has its own melancholy, it's better to know before proceeding with the experience.
Listen to this article

Table of Contents


Marriage is a personal event in the life of an individual. It is a cardinal tradition in all religions prevailing in India or anywhere else. However, it is governed by civil laws in order to address any disputes and safeguard people’s welfare while upholding the social fabric of the society. In all religions, consent is given importance under laws. Even if the knot may have been tied while the bride or groom were too young or had not attained the age of majority, they are usually given the option to nullify such marriage if the same is against their wishes.


Mutual Divorce in India 

Although marriage requires consent of both husband and wife, there are instances where things do go smoothly. Not every couple remains lovey-dovey all the time, but there are some whose relationship hangs over its terminal. At such events, it is better to let it fall off rather than holding on with unbearable pain.

 

Mutual consent divorce is one such option which is peaceful, beneficial and pocket friendly for both the parties as compared to other options. Due to the ease of mutual divorce process, there are instances of parties jumping from contested to mutual consent divorce when they get tired of the unnecessary legal battle. Things are easier when you are familiar with the path and destiny. Hence, here is an attempt to demonstrate all facets related to mutual consent divorce in India.


How to apply for Mutual Divorce? - Mutual Divorce Procedure

If you and your spouse have decided to no longer make things difficult for each other and part ways for good, this is the most amicable decision. Although the courts allow parties to appear personally and deal with their matter, it is advisable to opt for professional help through a mutual consent divorce lawyer. This will better help parties understand how to get mutual divorce. To peep through the process for mutual consent divorce in India, the following steps may help.


How to get Mutual Divorce?

Step 1 - Separation: As per law, the parties seeking mutual divorce in the court of law are required to stay separately for a period of at least 1 year.

Step 2 - Filing the Petition: They have to bring a mutual divorce petition through a lawyer which is signed by both the parties, before the family court of suitable jurisdiction. For example, a lawyer in Kolkata for divorce may help if parties have been residing in Kolkata after marriage or the marriage was solemnised there.

Step 3 - Appearance before Court: Once the petition is accepted for hearing by the concerned family court, the parties have to appear before the same on prescribed date. At this stage, the court may assess the situation, documents attached and the scope for reconciliation among the parties.

Step 4 - Record of Statements: After affirming the facts of the case beforehand, the court orders recording the statements of parties on oath.

Step 5 - First Motion: After recording statements of both the parties, court orders a cooling period of 6 months under the first motion during mutual divorce process. This is to allow them to calm down and reconsider their decision of separation. If they reconcile during this period, there is no need to go back to court. However, if things do not improve, second motion proceedings can be commenced anytime till 18 months once the 6 month cooling period expires.

Step 6 - Second Motion and Final Hearing: After the expiration of a given timeline of 6 months, parties may start with the second motion whereby the final hearing is conducted before the respective trial court.

Step 7 - Divorce Decree: With the confirmation of facts of the case, mutual consent over divorce and other related aspects, the court passes final decree for mutual consent divorce in India. The court thereby declares dissolution of marriage.

 

It may be noted that after a mutual consent divorce latest judgement by the hon’ble Supreme Court, the trial courts are empowered to evade this step of 6 month cooling period if parties wish so.

   

Documents for Mutual Consent Divorce

Whether it is mutual divorce proceedings or any other, documentation is a must, lack of which may bring technical glitches in otherwise strong cases. Thus, parties are advised to comply with the following document requirements when heading for a mutual divorce petition:

  • Certificate of marriage;
  • Address proofs of both the parties, i.e. Husband and Wife;
  • Marriage photographs;
  • Invitation card of marriage (in case the marriage was arranged and solemnised as per traditions);
  • Family details of both husband and wife;
  • Occupational and income details;
  • Income tax statements of both the spouses for the past 3 years;
  • Properties and other valuable assets owned by the parties;
  • Evidence to prove spouse’s separate stay for a year or more; and
  • Evidence to prove failed attempts of reconciliation among husband and wife.


Alimony in Mutual Divorce

Just like any other terms in the petition, the settlement amount in mutual divorce is also agreed upon by the parties mutually. Alimony can be understood as the maintenance amount payable to the dependent spouse by the earning one for support. Hence, it may be the husband paying the wife and also the other way around if the wife earns more than the husband. There may also be waiver of alimony if parties agree since the court usually does not interfere on mutual divorce agreement but confirms the consent of parties.

 

Mutual Divorce Child Custody

Children are the ones who suffer incomparable destruction if their parents' marriage comes to an end. However, it may be a better option if the otherwise normal family is providing a toxic environment for such children. It must be troublesome from couples’ perspectives as well to get mutual divorce with child. Talking about competency, either spouse is rightful to stay with the child. They may even share the custodial rights. It is better for parties to decide mutual divorce child custody before reaching out to the courts. If both the husband and wife are not on the same lines for their decision on child custody, there is no point of mutual consent and the court may dismiss mutual divorce petition.


Disadvantages of Mutual Consent Divorce

Divorce is in itself a disadvantageous phase of life, but sometimes in some cases, ending is paramount for a new beginning. Here, some of the disadvantages involved in mutual divorce process are mentioned:

  • Depending upon the laws applicable, mutual divorce procedure requires parties to stay separate for at least a year in order to get their petition accepted.
  • The settlement amount in mutual divorce is decided by the parties rather than the court.
  • Parties have to decide custody rights among themselves in case of mutual divorce with child.
  • The cooling period declared by the court may be emotionally a challenge for the parties to divorce.
  • The mutual divorce agreement is consensual from the beginning. But, either spouse has the right to withdraw proceedings of mutual consent divorce at any time before decree, which may take a toll for the other spouse if the decision is not mutual.


Mutual Consent Divorce in India - FAQs

Q- How long does mutual divorce take?

A- The time for the mutual divorce process varies as per the facts of the case. Usually, the court asks parties to undergo a cooling period of 6 months after the first motion. Thereafter at the expiry of this time, and at the institution of second motion by the parties, the court decides whether or not to grant mutual consent divorce. However, at the request by parties, the court may expedite this period of 6 months and grant quick divorce. The mere goal of extending the process is to make parties realise whether they can live apart or together as a chance of reconciliation.

 

Q- What are the conditions for mutual divorce?

A- For bringing a mutual divorce petition before the court, the parties should be living separately for at least 1 year, both gave their free consent to end the marriage and there is no scope for reconciliation. It may be noted that although the case is instituted before the court after ascertaining the above pointers, the parties are free to withdraw before passing of decree by the court.

 

Q- What are the benefits of mutual divorce?

A- Mutual divorce is preferred over contested if possible because the latter becomes a legal battle where both the parties lose much time and money. So if a marriage has come to its end, the same is usually realised by both. Thus, it is advisable to reach out on mutual divorce agreement rather than fighting before the court.

 

Q- What is an MoU in mutual consent divorce?

A- A memorandum of understanding or MoU in mutual divorce is the document containing initial terms of settlement between husband and wife based on which, the divorce lawyer drafts the separation agreement. It may be noted that an MoU is a legally non-binding document.

 

Q- Is mutual divorce expensive?

A- Since the case of mutual consent divorce involves comparatively less documentation, pleadings, evidence, etc., it is comparatively more convenient and should be affordable. However, the cost of the mutual divorce process depends upon facts of the case and various other factors including the experience of counsel hired, success rate, locality of the court of jurisdiction and more.

 

Q- Can I marry again without divorce?

A- No. Marrying another person while you have a spouse living is not allowed but is an offence as well. As per section 494 of the Indian Penal Code, 1860, bigamy is illegal and punishable with imprisonment upto 7 years and fine.  

Written By:
Ridhi Khurana

Ridhi Khurana

Gurgaon

Recommended Free Legal Advices
question markNRI Child Status in India 2 Response(s)
As per law father is the natural guardian of child above 5 years. Fluency in English does not mean that person is intelligent and sane. Many people like from china, Japan, USSR, Israel etc uses translator to communicate. 1. Since child is born in India hence till 18 he can have be Indian citizen or be Australian citizen and on attaining 18 child shall have option to choose citizenship of either country. 2. Yes. 3. Yes. On attaining 18 years he shall have option to choose citizenship of either country. 4. You cannot stop a person from filing case but you have right to defend and also to take precautions to save yourself from such frivolous cases.
question markMutual divorce 5 Response(s)
Aap mutual divorce dakhil kar sakte hai. Or petition me sab conditions draft kar sakte hai. Children ke baare me likh sakte ho. Children hai to uski dekh rekh ka conditions to likhni padegi. Rahi baat ek must dhan rashi ki to aap usko us din de jis din court dono paksho ke bayan likh le or file ko order ke liye fix kar de. Advocate nhi sun raha hai to aap change kar sakte hai. Ya bar Association ko complaint kar sakte ho. Ki advocate sahi guide nhi kar raha h.
question markAdivice 4 Response(s)
Dear Client, Now you can file separate petition for Child Custody continuation as on earlier ground taken and considered by Family court for child custody. Thanks
question markMutual divorce 7 Response(s)
Hello ma'am, 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)
question markproblem in mutual consent 5 Response(s)
Dear Madam, You must take his consent before the Court without his presence no mutual divorce can be granted.