People get married to have a peaceful and enjoying life, but sometimes things do not happen the way we want. The best we can do is to get the divorce amicably or through mutual consent as this is the easiest way to get the divorce and minimize litigation time. We know that divorce is painful either by mutual or by merit. But we also believe new beginning are often disguised as painful ending and it’s better to be with someone who brings out the best in you not the stress in you.
Parties can take mutual divorce under section 13-B of the Hindu Marriage Act,1955 as the name itself suggests mutual where both the parties agree in getting the divorce amicably. The best part of mutual divorce is you do not need to tell the lawyer, judge or anyone about your personal grievances or reason for taking divorce unlike a contested divorce where you have to pen down your all cruelty facts.
The parties willing to end the marriage are required to wait for at least one year from the date of marriage. They have to admit that they have no conjugal relation since one year irrespective of the fact that they are living under the same roof.
Where the person can file for mutual divorce-
1) Parties can file the petition from the place where they got married.
2) They can file the mutual divorce from where they last resided together.
3) They can file from their respective places where they are presently residing.
What happens in court-
Petition and MOU(Memorandum of Understanding- both parties terms and conditions) have to be filed in the court on the decided date by the parties. It is called first motion. After the filing and recording of the statement, the court grants the cooling period of 6 months but in present scenario if Hon’ble family court is convinced that cooling period (six months) will not work positive for the parties and that will only prolong their mental agony than the court has the power to waive off the cooling period.
As per Hon’ble Supreme Court judgement in case:
i. Statutory Period of six months can be waived in Mutual Consent divorce, Divorce by mutual consent is the fastest way or procedure of getting the divorce in India. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 are entitled to make use of the provision of divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file the case under following Acts which vary according to the law applicable to parties:- Sec. 13-B of The Hindu Marriage Act. Sec. 28 of The Special Marriage Act. Sec.10-A of The Indian Divorce Act.
In The Matter of Amardeep Singh Vs Harveen Kaur the Hon’ble Supreme Court held that:- The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
ii. All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
iii. The parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties;
iv. The waiting period will only prolong their agony.
At the time of second motion after six months or at the time of waiver-off the parties have to present themselves again in the court confirming the mutual consent filed earlier. It is only after this second motion that a divorce decree is granted by the Ld Family court and within next 10 to 15 days parties can either collect it from our office or can be delivered at their mentioned addresses.
Maintenance, Alimony and custody- As its a mutual divorce it is always advisable that both the parties have set their prior terms and conditions for maintenance, custody and alimony but if there is any doubt our lawyer help them in sorting out the issue amicably.
Can any party withdraw the mutual consent petition after filing in the court? During this period of 6 months when the petition is pending in the court, any of the party can withdraw the consent and hence the court cannot grant the divorce decree.
In such a situation where one person withdraw the consent , the other aggrieved person can file contested divorce on certain ground like cruelty, desertion, adultery, the other person being of unsound mind, conversion of religion, leprosy, venereal disease, a spouse having renounced the world or being missing of period more than 7 years.