What was seen as a criticism in the past has now got an amicable ground of mutual consent to split up. According to the Hindu Marriage Act, 1955 a petition for a ‘mutual divorce’ can be filed if you and your spouse are facing difficulties mutually and have decided to part your ways legally. Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provide for a divorce by mutual consent. Mutual consent divorce is when both husband and wife wish to terminate their marriage.
Conditions to be fulfilled for a mutual divorce
The following conditions for mutual divorce must be met, according to Section 13B of the Hindu Marriage Act of 1955:
1. For at least one year, both partners must have lived separately.
2. Both spouses had to believe they couldn’t live together.
3. The husband and wife must both agree that their marriage has failed and that it should be dissolved.
4. Without undue influence, both parties agree to comply and file for divorce jointly.
Things to be considered for a mutual divorce
1. Need and amount for alimony to be paid.
2. Matter relating to Child custody
3. Maintenance of the shared properties
4. Splitting of the properties and assets the couple own together.
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Different laws regarding Divorce in India
The Hindu Marriage Act of 1955 applies to Hindus, Jains, Buddhists, and Sikhs.
The Indian Christian Marriage Act of 1872/ Indian Divorce Act of 1869 governs Christians.
Divorce laws apply to Muslims, including the Dissolution of Marriage Act of 1939 and the Muslim Women (Protection of Rights on Divorce) Act of 1986.
The Parsi Marriage and Divorce Act of 1936 applies to Parsis.
The Special Marriage Act of 1954 governs inter-religion or inter-caste marriages.
Documents required for filing a mutual fund process
1. Marriage Certificate
2. Address Proof of Husband and Wife.
3. Four Photographs of the Marriage.
4. Income tax Statement of the last 3 years.
5. Details of the profession and Income like Salary slips, appointment letter
6. Details of the Property and Asset owned
7. Information about the family both husband and wife
8. Evidence of Staying separate for a year
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Process of a mutual divorce case
1. File a divorce petition:
It can be filed at any of the following locations:
>local court of the city where the couple last lived
>The court in which the couple’s marriage was officially solemnized
>The court in the location where the wife is now living
Both parties file a notice with the family court. Both parties must sign the joint petition, which states that the disputes are unavoidable, that the spouses can no longer live together, and that they mutually seek to dissolve the marriage.
2. Court inspection and hearing:
This is the point to bring reconciliation which if not possible the divorce proceedings continue. Both the parties along with their lawyers appear before the court along with the supporting documents that work as proof.
3. Passing statements on oath:
After thoroughly reviewing both sides’ petitions, the judge orders the statements to be recorded under oath.
4. First motion passed:
The first motion is passed following this petition, and the couple must wait 6 months before filing the second motion, which must be filed at least 18 months after the first motion is passed.
5. Second motion and final hearing:
Both parties can proceed to a final hearing if they have decided firmly on a divorce and second motion. Both parties present their cases in the second motion, and the court records both of their statements. The Supreme Court recently decided to waive a 6-month interim term if the court believes it is necessary and there is no dispute about alimony, child custody, or property. The court can also waive this 6-month period if it believes that the waiting time will only cause further hardship.
6. Divorce decree:
This is where the mutual divorce proceeding reaches a final stage. Here the couple settles their differences related t property matters, child custody, and alimony. With all the points being satisfied the court passes a final decree and the divorce takes place by dissolving the marriage and making the divorce final. There needs to be a complete agreement between both parties on a final decision for the dissolution of marriage.
