FILING A MUTUAL CONSENT DIVORCE IN INDIA
In the realm of matrimonial law, it is being increasingly recognized that a contested dissolution of marriage often causes great hardship by way of expense, lack of reliable evidence and the enormous time consumed in courts. The Indian law has taken significant strides towards facilitating divorces. There are cases where one or both of the spouses may be offending the marriage vows, but when confronted with such charges in court, they usually plead innocence, driving the petitioner to collect all kinds of evidence to prove what is often known to the community.
There are also cases where both the spouses, basically innocent but incompatible for some reason, wish to separate forever, yet suffer in silence because of the lack of grounds or funds and the ugly prominence that divorce proceedings often entail. To alleviate all these situations, divorce by mutual consent has been introduced to the Hindu Marriage Act (hereinafter referred to as “HMA”) by the 1976 Amendment. Section 13-B thereof reads:
Section 13-B Divorce by Mutual Consent –
1. Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground 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.
2. On the motion of both the parties made not earlier than six months1 after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
WHEN CAN I FILE FOR A DIVORCE BY MUTUAL CONSENT?
Subject to the provisions of the Act, Section 13-B applies to all marriages solemnized before or after 18th May 1955 when HMA came into force. A petition has to be presented to the District Court by both parties to the marriage, stating:
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.
WHAT ARE THE STEPS INVOLVED IN A MUTUAL CONSENT DIVORCE?
A divorce by mutual consent follows these steps:
Step 1: First Motion - A combined petition for divorce by mutual consent is filed by the parties (husband and wife) under Section 13 (B) (1) HMA, before a court of competent jurisdiction. The court analyzes the petition and, if found satisfactory, proceeds to record the statement of the parties. After recording the statements, the court passes an order allowing the first motion. Subsection (2) provides that a period of six months must elapse between the first and the second motion, but not more than 18 months. This ‘cooling-off’ period has been provided with a view to neutralize possible impulsive actions of the parties.
Step 2: Second Motion- Once the cooling-off period is over, or has been waived off by the court, the parties file a combined second motion petition under Section 13 (B) (2) HMA. Once again, the court will record the statement of the parties and ensure that they are both in agreement over the terms of the divorce. After hearing the parties and making such inquiries as it deems fit, if the court is satisfied that a marriage was solemnized between the parties and that the statements made in the petition are true, it shall dissolve the marriage and pass a decree to that effect.
CAN THE COOLING-OFF PERIOD BE WAIVED?
Yes, where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B (2) of the Act, it can do so after considering the following:
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;
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;
The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between them;
The waiting period will only prolong their agony.
The waiver application can be filed one week after the first motion. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the concerned court.
Since the period mentioned in Section 13-B(2) is not mandatory but discretionary, the court may exercise its discretion depending on the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
Needless to say, that in conducting such proceedings the court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court, to advance the interest of justice.