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How to File for Mutual Consent Divorce: Step by St...

According to the Indian Legal system, the divorce procedure or process of divorce basically starts as soon as the divorce petition is filed. The way the divorce procedure in India in its entirety works is with the initiation of the filing of the divorce petition by either party to the divorce suit and serving of notice to the other party.If the relationship between the parties has hit rock bottom and both the spouses have jointly made a decision to split according to the law of the land, then either party can initiate ‘mutual divorce’ according to the Hindu Marriage Act, 1955. Either party can file for divorce even if any one of the parties is unwilling to file for divorce and is widely known as ‘contested divorce’. How to file for Mutual Consent Divorce?Section 13B of the Hindu Marriage Act, 1955 is related to the provision of mutual consent divorce and there is a preset divorce procedure to file for a mutual consent divorce mentioned in section 13B. To file a mutual consent divorce petition there is certain steps/procedure to follow as well as requirements that need to be fulfilled and they are as follows: 1. Filing a petition First and foremost, both spouses have to seek a decree of divorce by presenting a joint petition for dissolution of marriage to the family court through a divorce lawyer based on the fact that they have been living apart for a period of a year or more. They may also disclose that living together as couples did not come to fruition and therefore there has been a mutual agreement for dissolution of the marriage. Both parties would have to sign the petition.  2. Appearing before Court and scrutiny of the petition Both parties would have to be present at the family court with their respective divorce lawyer after the petition has been filed. What the court would do is analyze the petition with all the filed documents. The court may even try and reconcile any differences or patch up the strained relations among the parties, although if it's irreconcilable then the divorce case would continue until it reaches its logical conclusion.  3. Order for the recording of statements on oath After the court analyses the petition and it's satisfactory the courts may order the statement of the parties to be recorded under oath. 4. Order on First Motion and elapsing of a period of 6 months prior to Second Motion With the recording of the statements, the court passes an order on the first motion. After this step, a 6 months’ time period is allotted to both parties to divorce prior to filing the second motion. The maximum time period for the filing of a second motion is 18 months from the date the divorce petition is presented in the family court by a divorce lawyer, the only exception being withdrawing the petition unless the petition is withdrawn meanwhile.5. Second Motion and Final Hearing of the MatterWith the decision made to forge ahead with the divorce procedure and be present for the second motion, they can certainly do so and get on with the final hearing. Involved in this step are parties being physically present and statements recorded at the Family Court. Recently, though, the Supreme Court has upheld that the 6 months’ time period that the parties get can be waived off if the courts so wish to. Therefore, in instances of parties genuinely settling their marital issues including alimony, custody of the child or any other pending issues among the parties the cooling-off period of 6 months can be waived off if the courts decide that the waiting period of 6 months would only make them more miserable. Within the period of 18 months, if the second motion is not made, the court will not order any decree of divorce. It's an established law that consent can be withdrawn by either party at will prior to the courts ordering of the decree.6. Decree of Divorce?Both parties in a mutual consent divorce would have to be consenting to get a divorce fair and square without any bone of contention between the parties about alimony, child custody, maintenance, property, and so on. Therefore, a comprehensive agreement among the parties is required for the marriage to be dissolved. After the trial if the court is convinced about the truthfulness of what has been alleged in the petition and that there isn’t an iota of the probability of reconciliation or cohabitation, the courts would then pass a decree of divorce making the divorce final and declaring the marriage as dissolved according to the facts and situations of the case. You may have been unsure as to how to file for divorce or what the exact steps are. However, after reading this blog you would be more informed of the divorce procedure. So, go ahead and retain a good divorce lawyer to get a divorce. 

Posted By

Avik Chakravorty

11 hours ago

Divorce Law in India: Know Your Legal Rights

A couple can be traumatized after going through the experience of a divorce. What makes matters worse, is the fact that the long-drawn nature of divorce makes it a very costly affair in India more so if a spouse happens to contest the divorce. Even when there is a mutual consent to divorce the courts will not even consider their plea until and unless couples have been able to satisfactorily prove in a court of law that they have been mutually separated for at least a year.In India, similar to the vast majority of personal matters, divorce rules and laws are related to religion. For each and every religious group there are separate divorce rules and laws that are applicable to each of those religious groups. Divorce amongst Hindus, Buddhists, Sikhs and Jains for example, is in accordance with the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. Likewise, Civil and inter-community marriages are in accordance with the Special Marriage Act, 1956.Types of Divorce PetitionsThe options for a couple mutually consenting to a divorce or either of the spouses filing for divorce sans consent: Divorce with Mutual Consent: If couples agree to divorce then the courts would consider granting the divorce based on mutual consent. The precondition for the acceptance of the petition, however, is that the couple ought to be legally separated for at least a year or even two years according to the applicable act and provide evidence that living as a married couple has not been possible for them. Oftentimes, notwithstanding the fact that either spouse may be reluctant to a divorce, they would nonetheless be consenting to divorce as its less expensive and traumatic in comparison with a contested divorce. There can be an agreement on children’s custody, maintenance and property rights matters mutually.The aspects that couples need to reach a consensus on are alimony issues. It's pretty much open-ended as there isn’t any minimum or maximum level of maintenance or support that the law has set. The second aspect is child custody which has to be resolved among the parties as it invariably time-consuming when mutual consent is lacking in a divorce.  Child custody can either be shared, joint or exclusive in a mutual consent divorce and it largely depends on how well the understanding is between the spouses. The third aspect is the property. Couples have to make a decision as to division or partition of the properties including both movable and immovable properties along with the bank accounts. It does not necessarily have to be fair and square as long as both parties agree. It takes about six to eighteen months for the courts to grant a mutual consent divorce depending on the decision of the courts. The courts, in most cases, prefer ending mutual consent divorces as soon as possible and do not want to let it linger indefinitely.According to Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, couples ought to live separately for at least a year prior to starting divorce proceedings. Section 10A of Divorce Act, 1869, nonetheless, makes it mandatory for couples to live apart for a minimum of two years. To clarify on living separately, it's not necessarily that couples would be living in two different locations, rather couples need to provide evidence or prove unequivocally that they have not been living as husband and wife during the one year period of separation. Divorce sans Mutual Consent: In the event of a contested divorce, there are certain reasons for making the petition. Without a valid reason, couples cannot possibly get divorced. The possible reasons for divorce are the following, although some aren’t applicable to every religion.1.     Cruelty Cruelty could be either physical or mental cruelty. Based on the Hindu Divorce Laws in India, if a spouse has reason to believe or is apprehensive that the other spouse could assault or cause injury which would be harmful then these are valid reasons for getting a divorce. 2.     Adultery A man committing adultery in India which means an extramarital affair is liable to be indicted for committing a criminal offense. The wife certainly can seek divorce as a civil remedial measure. Conversely, if the wife is adulterous indictment can be waived. Although the husband can prosecute the adulterous male for committing adultery.  3.     Abandonment If a spouse abandons the other spouse for no reason, then the spouse abandoning should be able to provide evidence of his/her intention of abandonment. According to Hindu laws, the abandonment ought to last for a minimum of two consecutive years. Christians, though, are exempted from filing a divorce the reason being abandonment. 4.     Conversion A spouse can seek divorce if in the case of the other spouse there has been a religious conversion. In this case, instant filing for divorce is permissible as there isn’t any separation period.5.     Mentally Deranged spouse The incapability of a spouse in leading a normal married life due to being mentally deranged seeking a divorce, in that case, is permissible. 6.     Communicable Disease If a spouse is suffering from any transmittable disease, including HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, according to the Hindu Divorce Laws in India the other spouse may seek divorce.7.     Renouncing the World A spouse renouncing his/her married life and opting for sanyasa is a valid reason for the other spouse seeking divorce. 8.     Presumed Dead If there isn’t any news whatsoever as to whether a spouse is alive for at least seven years at a stretch from reliable sources then presumably the spouse is dead. In that case, the living spouse can seek a decree of divorce from the courts. What is Alimony ?As and when two people get married, the onus is on both of them to support themselves. As couples divorce supporting each other does not stop, rather it goes on. Based on the Code of Criminal Procedure, 1973, maintenance rights go beyond to people including either spouse, dependent children and not to mention even poor parents. Either spouse can claim but in reality, in most cases, it’s the wife claiming from the husband who ought to be able to provide. While considering the alimony amount that is to be paid, the earning potential of the husband would be taken into consideration and his wherewithal to reclaim his assets and his liabilities in case his wife gets the property.If either spouse cannot afford the divorce then, in that case, the expenses would be borne by the earning spouse. Factors influencing the duration and amount of alimony If it’s a contested divorce, the tenure and amount of alimony would be correlated to the duration of the marriage. Couples contemplating divorce after being married for a decade are eligible for lifetime alimony. The other necessary factors that need to be looked into are:1. Spouse’s age or the person entitled to get the alimony  2. The alimony provider’s economic condition or the person’s earnings 3. Both spouse’s health condition is a major factor in considering the alimony amount as the poor health condition of either of the spouses may lead to getting a higher alimony amount from the other spouse. 4. The spouse responsible for child custody would either be paying lesser alimony or could get a greater amount while the child is a minor.How are property matters settled?It hardly matters whether either of the spouses is owners of the property. Regardless of the fact that a petition for divorce has been filed married couples– occupying the property have the right to do so. If a spouse is entrusted with child custody then the case is even stronger. While either one of the spouses may get property rights when it comes to the divorce settlement, until and unless the decree of divorce is final, both spouses can rightfully be occupants of the property.What about child custody?It’s a common assumption that the mother would always get custody of her children. However, this isn’t the case. In the case of a mutual consent divorce, the courts usually agree with the parents on whatever they decide, however, the expectation is that the courts would ensure that the best interests of the children are taken care of. In case of a contested divorce, the courts would analyze both the mother’s and father’s ability to being the child’s parent. Money isn’t a consideration. Stay-at-home mothers get custody of their children on a regular basis but fathers are supposed to provide financially. What is the cost of a divorce?The court fees are nominal for filing a divorce; paying lawyer fees is essentially the cost of a divorce. Lawyers typically charge fees for appearing and representing clients in court and doing any additional work. The cost of a divorce may be ranging between low ten thousand to lakhs of rupees depending on the intensity of contesting the divorce. Annulment of marriageIn India, marriages can be dissolved through annulment. Divorce and annulment procedures are exactly the same the only difference being the basis of annulment and divorce differ. Annulment of marriage occurs when fraud is perpetrated, wife gets pregnant through an extramarital affair, and last but not the least, impotence prior to marriage and persisting even as the case is filed. Once an Indian court grants annulment the status of the parties reverts to before the marriage.Void MarriageIf a marriage is prohibited under the law then the marriage is automatically voided. Section 11 of the Hindu Marriage Act, 1955 lays the instances of a void marriage:After the commencement of this Act is any marriage is solemnized the marriage will be considered null and void and may, by virtue of a petition put forward by either party to the suit, against the opponent party be pronounced by a decree of nullity if it violates any one of the preconditions stated in clauses (i), (iv) and (v), Section 5 of the Act.Bigamy: Being legally married to someone else during the marriage is a case of a void marriage and annulment isn’t necessary. Interfamily marriage: Marriages amongst ancestors and descendants, or amongst relationships like brothers and sisters, whether by the half or the full blood or through adoption.Marriage between close relatives: Relationships including uncles and nieces, aunts and nephews, or amongst first cousins, whether by the half or the full blood, are all void marriages in the eyes of the law. The only exception being marriages validated by customs.Voidable Marriage:In cases of an annulment that is not automatic, it's considered a voidable marriage and one of the parties must seek to make the marriage voidable. Usually, either one of the parties may seek an annulment if at the time of the marriage the intent to get into a civil contract was not clarified for any one of the reasons including mental illness, intoxication, duress or fraud.How long it might take to finalize a divorce varies on a case by case basis as well as based on location. Usually, divorce proceedings that are contested would take anywhere between 18 to 24 months while mutual consent divorce would vary from 6 to 18 months. 

Posted By

Avik Chakravorty

1 day ago

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  • What is Tort?
  • What is Tort Law?
  • What are the Important Aspects Torts?
  • What are the General Defences to Torts?
  • What are the Types of Torts?

What is Tort?


The origin of the word tort is the latin word ‘tortum’ which means ‘to twist’. Tort does not have a standard universal definition but the generic idea is that tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. Not all civil wrongs are torts.

What is Tort Law?


Tort law in India is a relatively new common law development supplemented by codifying statutes including statutes governing damages. While India generally follows the UK approach, there are certain differences which may indicate judicial activism, hence creating controversy. Tort is breach of some duty independent of contract which has caused damage to the plaintiff giving rise to civil cause of action and for which remedy is available. If there is no remedy it cannot be called a tort because the essence of tort is to give remedy to the person who has suffered injury.

Important aspects of Law of Torts:


For an act to constitute a tort, it must satisfy certain conditions, there must be some act or omission on the part of the defendant, which in turn should have resulted in legal damage (injuria), i.e., violation of a legal right vested in the plaintiff.

The relevant factor for commission of tort is the presence of a ‘legal damage’ which need not be causing actual tangible damage, whereas, an act which is causing some substantial damage but not a legal damage would not constitute tort. For example, in cases of trespass, the person trespassing may not damage the property he entered but would still constitute a legal injury, whereas, in case a competitor due to whatever legal reasons may cause massive losses to another person but would still not have committed a Tortious act.

Torts don’t necessarily stem from Statutes only and can stem from common law principles. Torts in India stem like the other common law jurisdictions stems from both statute and common law.

General Defences to Torts:


There are certain defences which are of a generic nature and can be availed in most of the tort cases. They are the following-

  • Volenti non fit injuria – this refers to voluntary assumption of risk. When someone suffers harm with their own consent then it acts as a complete defence for the defendant. However, mere knowledge of the risk(scienti non fit injuria) does not imply consent, for example, if a driver is forced by his employer to drive a vicious horse and he drives that under protest, then he will be entitled to claim such compensation in case an injury is caused to him(Bowater v. Rawley Regis Corporation). Doctrine does not imply to rescue cases though.
  • Plaintiff the wrongdoer – No action arises from an immoral cause. If the harm suffered by the plaintiff is fundamentally linked with the wrong act of himself then the defendant may use it as a defence. For example, if the plaintiff drives an overloaded truck despite strict instructions not to, and eventually suffers harm due to the bridge breaking, then the defendant has a defence available. However, plaintiff is not disabled from recovering in tort unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction.
  • Inevitable Accident – An unforeseeable & unavoidable accident in spite of reasonable care taken on defendant’s part acts as a defence. Inevitable refers to a situation wherein it was not avoidable by the precautions which a reasonable man would have implemented.
  • Act of God – It is similar to the idea of “Inevitable Accident”, but the forces here are forces of God/Nature, i.e., floods, storms, etc. It acts as a defence to the idea of “Strict Liability”.(summary of ‘strict liability’ is below)
  • Private Defence – Law permits use of reasonable force to protect one’s person or property. However there should be presence of an ‘imminent threat’.
  • Mistake – Mistake, whether of fact or law, is generally not a defence for torts. However, in torts requiring malice as an element, the liability does not arise when the defendant acts under an honest and mistaken belief.
  • Necessity – An act causing damage if done under necessity to prevent greater evil is not actionable even though harm was caused intentionally. For example, throwing goods overboard a ship to lighten it for saving the ship and persons on board the ship.
  • Statutory Authority – When an act is done under the authority of an Act, it is a complete defence and the injured party has no remedy except for claiming such compensation as may have been provided by the statute.

Types of Tort Law


There are three primary categories of tort law- intentional torts, negligent torts and strict liability torts. In India the concept of absolute liability also exists which shall be spoken of later.

  • Intentional torts are those torts which are committed with the intention of undergoing an activity which would end up in causing injuria (violation of legal right) of someone for example trespassing or battery(harmful or offensive contact with another person).
  • Negligent torts are those torts that are born out of negligence on part of person and not because of the intention to cause a legal harm to someone, for example, if someone breaks a cup in anger part of which end up hurting someone else. Then there are strict liability torts, sometimes seen as product liability torts, these are torts when there is an imposition of liability on a party even in the absence of finding of a fault like a tortious intent or negligence, for example the production head of a company being strictly liable even for a fault committed by a labourer working under him.
  • The concept of strict liability was discussed in the case of Rylands v. Fletcher. In this case, the defendant had constructed a water reservoir which his hired engineers ended up building on top of an abandoned coal mine, Rylands (the defendant) was unaware of this fact. Eventually the reservoir broke down and ended up harming Fletcher’s coal mines for which a lawsuit was subsequently filed. Rylands was held “strictly liable” and it was observed that a person who for his own purposes keeps on his land anything with the potential of causing mischief will be prima facie answerable for the damage which happens as a natural consequence of its escape.

In India, there is a unique concept known as the principle of “Absolute liability”. In the case of ‘M.C. Mehta v. Union of India’ there was leakage of oleum gas which caused harm to the people exposed to the gas leak. It was in Court’s mind that an year ago Bhopal Gas Tragedy had happened hence Court gave a judgement befitting of a crime of a nature which has the potential to cause such great tragedy. The ratio followed here was similar to the concept of Strict Liability with the addition of ‘Absolute Liability’ not being subjected to any of the exceptions or defences of the rule of Strict Liability.

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