Process For Mutual Consent Divorce In India?

Section 13B of the Hindu Marriage Act, 1955, provides for divorce by mutual consent. It enables a husband and wife to dissolve their marriage amicably, provided both parties agree that the marriage has irretrievably broken down and cannot continue.

Key Provisions of Section 13B

1. Conditions for Filing

To file for divorce by mutual consent under Section 13B, the following conditions must be met:

1. Mutual Agreement: Both spouses must mutually consent to the divorce.
2. Separation Period: The spouses must have lived separately for at least one year before filing the petition.
3. Irretrievable Breakdown: Both parties must assert that they are unable to live together as husband and wife.

2. Filing a Joint Petition

• The petition is filed jointly by both parties in a family court or district court having jurisdiction over their marriage.

3. Two-Stage Process

Divorce by mutual consent under Section 13B involves two motions:

1. First Motion:
   • The initial joint petition is filed, outlining that the couple has been living separately for at least one year and has mutually agreed to dissolve the marriage.
   • The court examines the petition and may record statements from both parties.
2. Cooling-Off Period:
   • A minimum six-month cooling-off period is required before the second motion can be filed.
   • The court may waive this period under special circumstances (e.g., Supreme Court ruling in Amardeep Singh v. Harveen Kaur, 2017).
3. Second Motion:
   • After six months (or earlier if waived), the parties reappear to confirm their intent to divorce.
   • The court verifies that the consent is voluntary and not coerced.

4. Final Decree

• Upon satisfaction, the court grants a decree of divorce, dissolving the marriage.

Important Points to Note

1. Separate Living:
   • “Living separately” does not necessarily mean physical separation. It implies that the spouses have not been living as husband and wife and do not share marital responsibilities.
2. Irrevocability of Consent:
   • Either party can withdraw consent during the cooling-off period, effectively halting the divorce process.
   • The court will not proceed with the divorce if mutual consent is withdrawn.
3. Custody of Children and Alimony:
   • Issues related to child custody, maintenance, and alimony must be resolved by mutual agreement and outlined in the petition.
4. Waiver of Cooling-Off Period:
   • As per the Amardeep Singh judgment (2017), courts may waive the six-month cooling-off period if:
     • The couple has already been separated for a significant period.
     • There is no chance of reconciliation.
     • Both parties agree to the waiver.

Advantages of Divorce by Mutual Consent

• Faster resolution compared to contested divorce cases.
• Amicable settlement, reducing emotional and financial strain.
• Minimal interference by courts, provided both parties agree on terms.

Conclusion

Section 13B of the Hindu Marriage Act provides a straightforward, amicable legal avenue for couples seeking to dissolve their marriage through mutual consent. The emphasis on a cooling-off period ensures thoughtful decision-making, while provisions for waivers accommodate cases where the separation is clearly final.

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