Tuesday, 4 May 2021

DIVORCE BY MUTUAL CONSENT - PROCEDURES IN COURT

 Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. 

Mutual Consent Divorce between Hindu Couple is governed by The Hindu Marriage Act, 1955, under Section l3B.Mutual Consent Divorce in case of Court marriage is governed by The Special Marriage Act, 1954 under Section 28.Mutual Consent Divorce in case of Christian Couple is governed by The Divorce Act, 1869, under Section 10 A. 

When can the divorce by mutual consent be filed?

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.

 Divorce by Mutual Consent. 13 B Procedures in court

The Conditions required under section 13B of the Hindu Marriage Act are as follows:

(i) Husband and wife have been living separately for a period of one year or more,

(ii) That they are unable to live together,

(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved.

Under the above circumstances a Divorce by Mutual consent can be filed.

 Steps in Court Procedure (13 B)

In all there are two court appearances in a mutual divorce

1.                    First A joint petition signed by both parties is filed in court. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Honourable Court.

2.                    Thirdly The 6 month period is given for reconciliation, (the honourable court gives a chance to the couple to change their mind)

3.                    Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.

4.                    Divorce decree will be granted as the Honourable Court may deem fit.

 Under sec. 28 of the Act, which primarily deals with the provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce by mutual consent may be presented to the District Court. A few key points to be considered while seeking a divorce by mutual consent are as follows:

1. A petition for divorce must be presented to the District Court by both parties together.

2. The petition must be on the grounds,

·        that they have been living separately for a period of one year or more,

·        that they have not been able to live together, and

·        that they have mutually agreed that the marriage should be dissolved.

3. The petition may be presented only after one year from the date of entering the certificate of marriage in the Marriage Certificate Book. However, relaxation may be provided in cases where exceptional hardship is suffered by the petitioner or in cases of exceptional depravity on the part of the respondent.

4. The petition seeking divorce by mutual consent could be presented to a District Court / Family Court , within whose jurisdiction, either,

·        the marriage was solemnized,

·        the respondent resides, or in case the wife is the petitioner, where she is residing,

·        the parties to the marriage last resided together, or

·        the petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends.

5. Between 6 months after, and within 18 months of, the date of presentation of the petition seeking divorce by mutual consent, both parties must make a motion together seeking grant of a decree of divorce.

6. Before passing a decree of divorce, the District Court considers the following, among other aspects:

·        that the petition has not been withdrawn yet,

·        that a marriage has been solemnized under the Act,

·        that the averments in the petition are true,

·        that consent for divorce has not been obtained by force, fraud or undue influence

·        that there has not been any unnecessary or improper delay in instituting the proceedings.

Thus, the provisions and the procedure for obtaining divorce by mutual consent under the Special Marriage Act are fairly simple and straight forward.

 Can any one party withdraw the mutual consent petition after filing in the court? What will happen by that?

During this period of 6 months when the petition is pending in the court, any of the partner is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. In such circumstances, the court grants no divorce decree.

Where to file a divorce petition:

 1. The court can be one where couple seeking divorce last lived.

2. The court can be one where the marriage was solemnized.

3. The court can be one where the wife is residing as of present.

 The Supreme Court held that the minimum cooling period of six months for granting the decree of divorce under the Hindu law can be waived by a trial court if there was no possibility of cohabitation between an estranged couple.

Important Issues to be Settled before Proceeding:

Child Custody: Which partner will get the child custody after divorce

Alimony/Maintenance: If one of the partner is unable to meet his daily expenses then other needs to pay him a certain sum of amount as alimony (one time settlement or monthly payment). It is subject to mutual understanding between the partners (husband and wife).

Settlement of Property and Assets: Settling the ownership rights of property and asset like dwelling house, bank accounts, movable assets between the parties (Husband and wife)

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DIVORCE BY MUTUAL CONSENT - PROCEDURES IN COURT

  Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent...