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Updated and Published on 22 January 2019
What is Divorce by Mutual Consent?
Section 13B of the HMA Act 1955 provides for divorce by mutual consent. period of separation is 1 year)
Section 28 of the Special marriage Act, 1954 provides for divorce by mutual consent.
Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of separation is 2 years)
The Conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved. Under these circumstances a Divorce by Mutual consent can be filed.
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16,974 Mutual Divorce Decree
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Advantages of Mutual Divorce
What is Divorce by mutual consent?
Mutual Consent Divorce between Hindu Couple
Mutual Consent Divorce in case of Court Marriage
Mutual Consent Divorce in case of Christian Couple
There are three other requirements for Mutual Consent Divorce under section 13(B) as follows:1) The couple have been living separately for a period of one year or more
2) The couple not been able to live together and
3) The couple mutually agreed that the marriage be dissolved.
As par sub-section 2, the parties are required to make joint motion not earlier six months and not later than 18 months after the said date. This motion empowers the court to satisfy itself regarding the genuineness of the averments in the petition and also to verify whether consent was not obtained by fraud and undue pressure. The court may make such an inquiry including the hearing or examination of parties for the purpose of satisfying itself
Who will file and appear for you in court?
Choudhury's law office will present your Divorce petition before the Hon'ble court.
Choudhury's law office is one of Delhi's oldest law firm. Its a Fourth generation law firm with tremendous reputation on family law matters (marriage, divorce, maintenance, child custody, 498a, domestic violence, Sexual harassment etc). Servicing since pre independence era.
Your divorce will be personally handled by one of our reputed and well experienced lawyer.
The firm holds the reputation of providing quick and hassle free mutual divorce...
We appear in all Family courts in Delhi ie. Rohini Court, Patiala House Court, Dwarka Court, Saket Court, Karkadoma Court and Tiz hazari Courts, in special cases we also appear in NCR Courts such as Noida Court and Gurgaon District Court.
* 3,930 Divorce Decree obtained as of 30/7/2012
*6,012 Divorce Decree obtained as of 6/05/2014
*7980 Divorce Decree obtained as of 31/12/2015
* 8270 Divorce Decree obtained as of 31/12/2016
* 12970 Divorce Decree obtained as of 31/12/2017
* 16,749 Divorce Decree obtained as of 31/12/2018
For Mutual Consent Divorce in Delhi:
Here are the list facts to be mutually agreed upon in the petition for
Divorce by Mutual Consent:
What does Divorce by Mutual Consent Mean?Divorce by Mutual Consent means when both Husband and wife has agreed amicably amongst themselves that they cannot live together anymore and that the best solution is to Divorce, without putting forth any allegations against each other, in the court of law, than such a Divorce petition presented jointly before the honourably court, is known as mutual consent Divorce, it is the quickest form of divorce in India.
A. Formalities to be complied withUnder this section a decree for dissolution of marriage solemnized under this Act can be passed by a District Court on compliance with the following formalities:
(a) A petition is to be presented jointly by the parties to the marriage.
(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.
But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.
(c) The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.
(d) The parties have freely consented to the agreement of dissolution of marriage.
(e) The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred. But in Sureshta Devi v Om Prakash it has been held that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.
(f) The court must be satisfied as to the averments in the petition after making inquiry and after hearing the parties which are initiated by a joint motion of the expiry of six months from presentation of the petition. The expression after hearing the parties appearing in sub-section (2) of section 28 of the Act does not require the presence of the parties before the court. Affidavit-evidence is sufficient for this purpose by virtue of section 40 of the Act which attracts the Code of Civil Procedure 1908 and which provides in Order 19 for proof of any point by affidavits.
B. Appeal and revision.The maintainability of appeal though open to question, order is open to revision either under s.115 of the Code of Civil Procedure or under Art. 227
of the Constitution of India.
C. Ground of divorce by mutual consentThe ground of divorce by mutual consent is to be found in s. 28 of the Special Marriage Act 1954, and in s. 13B of the HMA. The Hon'ble court cannot read that ground under s. 10 of the Divorce Act 1869, by adopting a policy of social engineering.
D. Reconciliation necessaryEven if dissolution of marriage by mutual consent is sought by a joint petition of the husband and the wife still it is incumbent on the court to comply with the mandatory provisions of s. 34(2) of the Act to make attempt for reconciliation between the parties.
Can Mutual Consent be WithdrawalBefore a decree for mutual consent is passed, the question arises whether the party can withdraw its consent or not. At times, the question has also come before the Court and there was a conflict of opinions on the point whether the parties to divorce can withdraw its consent unilaterally. The Bombay High Court in Jayashree Ramesh Londhe v. Ramesh Bikaje Londhe. expressed the view that crucial time for the consent for divorce under section 13B was the time when the petition was filed.
If the consent was voluntarily given, it would not be possible for any party to nullify petition by withdrawing the consent. The Court took the support from Order 22, rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs to the suits. The similar view was adopted by High Court of Delhi in Chander Kanta v. Hans Kumar. and Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta.
To learn more about family laws here are a list of articles:
The section provides two specific bars which would disentitle a wife from
claiming maintenance under this Act, viz,
Supreme court Judgments on Divorce laws in India:
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