This article is written by Taniya Yadav, a law student at Allahabad University. This article attempts to explain mutual divorce and various aspects related to the mutual divorce process in India in an understandable way.

It has been published by Rachit Garg.

Introduction 

“Divorces are made in heaven,” as aptly said by Oscar Wilde in his play “The Importance of Being Earnest.” One cannot control loving or unloving another human being, it’s just the way it is. Had it been in anyone’s control, there would not have been so many people unhappy in their marriages. In today’s world, people want to be married, but on their own terms and conditions, and when those terms and conditions are not met, they are, without any social stigma, ready to leave the marriage for their own well-being. Every individual has the right to live a happy and fulfilling life, and if marriage is preventing the individual from attaining that, then it should come to an end. That’s why the concept of mutual divorce exists, and basically, it came into existence to bring people out of unhappy marriages so that they could reclaim their lives and their happiness. The mutual divorce process in India is going to be the subject matter of this article.

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What is a divorce

A divorce is a judicial declaration that the marriage between two individuals has come to an end. Marriages in India are governed by various laws, and so is divorce. It gives an individual the opportunity to live life from a fresh perspective and saves them from unnecessary mental stress.

What is a mutual divorce

Mutual divorce is a type of divorce where both parties decide that their marriage should come to an end. It is one of the most preferred types of divorce as it saves the time and energy of the parties involved and doesn’t make a hole in their pocket by extending the process unnecessarily to infinity.  

Mutual divorce in India can be obtained by applying the following provisions –

As per Section 10A of the Indian Divorce Act, 1869, the parties can go for mutual divorce only when they have fulfilled the following condition –

  1. The parties are living separately for a year.
  2. The parties cannot cohabit with each other.
  3. The parties believe that their marriage should come to an end.

The conditions which the parties are required to fulfil to obtain a mutual divorce decree from the court –

  1. The parties are living separately for at least a year or more than that.
  2. There is no scope for reconciliation between the parties.
  3. The parties can file a suit for mutual divorce only after one year of getting married.

In uncodified Muslim law, divorce by mutual consent is divided into two types –

1. Khula – Khula is a divorce with the consent of the husband and at the instance of the wife in which she gives or agrees to give a consideration to the husband to release her from marriage.

2. Mubarat – In Mubarat, both parties are in favour of judicial separation. 

Section 28 provides the grounds on which a petition for mutual divorce can be filed in court. The grounds are –

  1. Both parties are living separately for one year or more.
  2. There is no scope for reconciliation between the parties.
  3. Both parties believe that their marriage should come to an end. 

Things to keep in mind before heading for a mutual divorce are:-

  • Settlement of maintenance can accelerate the divorce process.
  • Settlement of assets and properties between the parties.
  • Settlement of child custody.
  • Settlement of pending litigation.

Where can a mutual divorce be filed

A mutual divorce can be filed in the family court of the following jurisdictions –

  • Jurisdiction in which the parties last resided together.
  • Jurisdiction in which the husband is living separately.
  • Jurisdiction in which the wife is living separately.
  • Jurisdiction in which the marriage of the parties had taken place. 

Requirements to consider a mutual divorce

The grounds for obtaining a mutual divorce are more or less the same in all religions and therefore a mutual divorce can be filed when the following conditions are fulfilled –

Both parties agree on getting a mutual divorce 

This means that the parties agree on getting their marriage dissolved throughout the divorce proceedings in court. If at any point either of the parties withdraws their consent, the divorce will not be granted by the court as it no longer remains a mutually contested divorce.

In Mr. Prakash Alumal Kalandari vs. Mrs. Jahnavi Prakash Kalandari (2011), the Bombay High Court held that when a joint petition under Section 13B of the Hindu Marriage Act, 1955, is filed, the Court assumes that the parties are consenting to divorce throughout the divorce proceedings until they prove otherwise. If either of the parties withdraws their consent, then the court no longer holds the power to grant a divorce decree.

Both parties are not living with each other for not less than one year

This means that a mutual divorce cannot be filed when parties are living with each other. Separation for at least a year before filing the divorce petition is a mandatory criterion for obtaining a mutual divorce. If parties are living under the same roof but are not living with each other as husband and wife, then such a situation will also be counted as separation.  

In Miten vs. Union of India (2008), the Bombay High Court held that living separately for one year is an essential condition for filing for divorce under Section 13B of the Hindu Marriage Act, 1955. It cannot be waived as the legislature has inserted this section keeping in mind the existing situation in society, and any interpretation of the law does not support such a waiver. 

Both parties agree that there is no scope for reconciliation

The parties, in spite of putting in all the effort, are not able to live with each other, and the only option left to them is a mutual divorce. 

In Sureshta Devi vs. Om Prakash (1991), the Supreme Court opined that the phrase ‘had not been able to live together’ simply means that the marriage has broken down to such an extent that reconciliation cannot be imagined. It is obvious that they cannot tolerate each other anymore, and that’s why they have filed a mutual divorce petition. Though, it is important to verify that their consent is based on their free will and not on any fraudulent means.

What is the mutual divorce procedure in India

The process goes in the following steps –

In Hindu Marriage

  1. Filing of a joint petition before the family court – 

This petition is presented before the family court by mutual consent of the parties. In this petition, the parties specify the time and place of their marriage, the time since when they are not living with each other, the reasons behind their broken marriage, and why they should be given a divorce. The period of living separately should not be less than one year, and both parties are mandated to sign the petition. Court fees are submitted along with the petition.

  1. The Appearance of the parties before the court or First Motion – 

After the filing of the petition, the parties will appear before the court and make their statements. The court will examine the facts mentioned in the petition and the documents submitted with it. The court may attempt to unite the parties, but if the marriage is broken beyond reasonable limits, the court may continue with the process. The court may even waive the cooling-off period, which is a minimum of six months and a maximum of eighteen months. If the cooling-off period is not waived, then the second motion can be filed after six months of the presentation of the petition before the family court and before eighteen months of the same.

  1. Second Motion – 

As soon as the parties appear for the second motion, they proceed with the final hearing. Joint statements are recorded again, and if the issues relating to alimony, custody of the child, and maintenance are settled, then the court passes a decree of divorce. After the decree has been passed, the marriage gets dissolved. 

Documents required

The following documents are required for filing a mutual divorce petition in India –

  • Marriage Certificate (if the marriage is registered)
  • Identity Proof of both husband and wife
  • Address Proof of both husband and wife
  • 4 Photographs of Marriage
  • Marriage Invitation Card
  • Passport-size photograph of husband and wife (2 each)
  • Income tax statement of last 3 years
  • Details of property and assets owned by the parties
  • Proof of not living together for not less than one year
  • Proof to support failed attempts of reconciliation

In Christian marriage

  1. Divorce proceedings are initiated when the parties file the divorce petition along with an affidavit in the district court.
  2. The petition includes the following details –
  • Name of the parties
  • Status and domicile of the parties
  • Date and place of marriage
  • A permanent address where the parties live
  • The Place where the parties last cohabited together
  • Children’s names with date of birth
  • The ground for seeking mutual divorce 
  • The facts and details by which the petitioner seeks the relief
  • That the parties are not deceiving the court by collaborating
  1. The statements are recorded by the parties before the court.
  2. After six months and before eighteen months of the filing of the petition, the parties reappear before the court and file the second motion.
  3. On hearing both parties, if the court is satisfied that the averments made in the petition are true and correct, then the marriage gets dissolved.

In Parsi marriage 

  1. A mutual divorce petition is filed by the parties before the court of law.
  2. The court records the statements of both parties and examines whether the statements mentioned in the petition are correct or not.
  3. Upon hearing both parties, if the court gets satisfied with the statements mentioned in the petition, then the marriage gets dissolved.

No cooling-off period is provided in Parsi Marriage and Divorce Act 1936.

In Muslim marriage

In cases of Khula –

  1. The wife makes an offer of divorce to the husband.
  2. The husband accepts the offer with consideration given by the wife.
  3. On acceptance by the husband, the marriage gets dissolved.
  4. After the marriage gets dissolved, the wife is required to observe iddat.

In cases of Mubarat –

  1. Either husband or wife can make the offer.
  2. The other party accepts the offer.
  3. On acceptance by the other party, the marriage gets dissolved.
  4. After the marriage gets dissolved, the wife is required to observe iddat.

In Special marriage

  1. A mutual divorce petition is filed by the parties before the court of law.
  2. The court records the statements of the parties and examines the statements.
  3. The parties re-appear before the court after observing the six months of the  cooling-off period.
  4. The parties file a second motion after six months and before eighteen months of the filing of the divorce petition.
  5. Upon hearing both parties, if the court gets satisfied with the statements mentioned in the petition, then the marriage gets dissolved.

Case laws

In Smruti Pahariya v. Sanjay Pahariya, (2009), the Supreme Court held that the non-attendance of a spouse in court in a mutual consent divorce petition cannot be assumed as consent after the expiry of the six-month cooling-off period. The fact that they signed the first motion under Section 13B of the Hindu Marriage Act, 1955, plays no role in establishing their consent in the second motion.

In Anamika Srivastava v. Anoop Srivastava, (2022), the Allahabad High Court held that it is not supposed to force parties to engage in mediation where the marriage has irretrievably broken down, considering the fact that the parties have been living separately for eleven years and have appeared before the mediation centre of the court and have failed to reconcile. 

In Sandhya Sen v. Sanjay Sen (2019), the Chhattisgarh High Court held that the existence of a dispute was not a prerequisite for the grant of divorce by mutual consent as the parties had lived together for only two days after the marriage. The Court held that if an application is otherwise duly constituted and properly presented before the court, it is not the responsibility of the court to search for grounds or reasons which has compelled the parties to seek divorce by mutual consent.  

In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the cooling-off period provided in Section 13-B(2) of the Hindu Marriage Act should be read as a directory provision and not mandatory. As the parties, in this case, had been living separately for eight years, there was no hope of them getting back together. 

In Hitesh Bhatnagar v. Deepa Bhatnagar (2011), the Supreme Court held that if the second motion is not passed within eighteen months, the court is not bound to pass a decree of divorce by mutual consent. It also held that either party might withdraw their consent at any time before the decree is passed. In this case, it was held that unless both parties mutually agree on getting a divorce and convince the court regarding the same, the court will not grant the divorce.

Conclusion

Anna Quindlen, in her novel ‘Alternate Side,’ said, “When one of you wanted one life, and the other wanted something completely different, there was a technical term for that: irreconcilable.” Divorce is a tough decision that should be taken with the utmost care as it not only affects the people involved in the marriage but also the people related to them. But it cannot be held back if the marriage has reached a point where it is causing more pain than happiness. Therefore, divorce by mutual consent is a great way to end all that trauma, and the process for the same is made extremely uncomplicated by the legislature and judiciary to help people walk out of unhappy marriages without burdening them with more mental stress.

Frequently Asked Questions (FAQs)

In how much time a mutual divorce can be obtained?

The time varies from case to case, but usually, it takes anywhere from 6 months to 2 years to obtain a mutual divorce.

Can the court waive the cooling-off period in cases of mutual divorce?

Yes, if the court is of the opinion that the marriage has broken down irretrievably and there is no scope for the parties to come to terms with each other, then the court can waive the cooling-off period. 

Can a mutual divorce petition be withdrawn after being filed in court?

Yes, it can be withdrawn anytime before the court has passed the decree. If either of the parties withdraws their consent, it no longer remains a mutual divorce.

Can Non-Residents of India file a petition for mutual divorce in India?

Yes, Non-Residents of India can file a petition for mutual divorce in India, but they need to produce additional documents to prove their jurisdiction.

References 

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