What is Mutual Consent Divorce?

Divorce is the legal dissolution of a marriage by a court or other competent body. The institution of marriage plays an important role in society despite the ever-increasing flood of divorce proceedings in family courts across the country.

Mutual Consent Divorce is the Quickest Form of Divorce

• It is the divorce sought and obtained from the family court by consenting spouses, preferably by filing a joint petition.
• Divorce is normally sought only when the husband and wife do not want to live together in a matrimonial relation any longer.

The Easiest Form of Divorce

• Mutual Consent Divorce is the easiest, cheapest, and fastest form of divorce. It is a stress-free way of getting a divorce.
• It normally takes six to eighteen months to get a decree. If both parties do not agree to divorce within eighteen months, then the petition will automatically get dismissed.

Legal Provision on Mutual Consent Divorce

• The Hindu Marriage Act, 1955 (HMA), in its Section 13B, provides for the dissolution of marriage by mutual consent.
• Any Hindu marriage solemnized before or after the date on which the section came into force (27 May 1976) can be dissolved by the court based on a joint petition of both spouses, provided the mutual consent obtained is based on free will and not by any force, fraud, or undue influence.

Going Ahead with Divorce

• The spouses should talk to each other about the future course.
• If both spouses conclude that marriage has irretrievably broken down and they want to separate as smoothly as possible, then Mutual Consent Divorce is the easiest way to get a divorce and avoid long-drawn litigation.

Work Out the Agreement Before Filing the Petition

• Before filing the petition, both spouses should come to mutually agreeable terms and conditions regarding alimony, maintenance, custody & upbringing of children, and other allied matters.

Child Custody is an Important Matter

• The spouses should decide on the type of child custody they prefer—physical and legal custody, visitation rights, and other matters.
• The welfare of the minor child/children is the paramount issue considered by the court.
• Both parents are equally competent to take custody. The mutual agreement between the parties will prevail.
• Parties can agree to joint custody or shared parenting in mutual consent divorce based on the child's best interest.

Settle the Financial Matters

• Settlement of financial matters includes alimony, maintenance, house, educational expenses, marriage expenses, dowry, joint investments, joint accounts, and other matters.
• The joint petition for divorce should state that all claims between the parties are settled and no claims remain unsettled.

Place of Filing the Petition

• Place where marriage had taken place
• Place where husband and wife last resided together
• Place where the wife is residing at the time of filing the petition
• Place where the respondent resides when filing the petition

When filing the petition, attach the photos and identity proofs of both parties, an affidavit stating that the contents of the petition are true, and a Memorandum of Understanding regarding child custody, maintenance, property sharing, or other mutually settled matters.

Divorce Petition Can Be Filed Only After One Year

• Mutual divorce petitions can be filed only after living separately for one year or more since the date of marriage, as per Section 13B of the HMA.
• The essential ground for mutual consent divorce is that the parties have been living separately for a period of one year or more and may not be able to live together.
• No court has the authority to accept a divorce petition before completion of one year of marriage unless there is exceptional hardship or depravity.

Petition Can Be Filed Before One Year in Exceptional Cases

• Under Section 14 of the HMA, a petition for divorce can be filed before completing one year of marriage if the marriage is of exceptional hardship to the petitioner or involves exceptional depravity by the respondent.
• Some Supreme Court judgments state that the one-year period for filing a divorce petition does not apply to mutual consent divorce, as the purpose of the one-year wait is for reconciliation.
• Waiving of the one-year period must be allowed only in extremely genuine cases.

Procedure for Filing a Petition

• Any petition to the Family Court regarding the Hindu Marriage Act shall be filed following the rules and procedures stipulated in:
  • Order VII Rule 1 of the CPC
  • Section 20(1) of the HMA
  • Rules framed by the High Court of Kerala
• The CPC provides provisions regarding:
  • Who can file a petition
  • Materials to be included in a petition
  • How to provide evidence
  • Procedure for hearing & judgment
  • Where and how to file an appeal or review
• Every petition shall:
  • Distinctly state the facts on which the claim to relief is grounded
  • Declare that there is no collusion between parties
  • Include an affidavit in support of the pleadings
  • Be verified at the foot by the party or a person acquainted with the facts of the case
• Verification must specify:
  • Which facts are verified based on personal knowledge
  • Which facts are verified based on received information or belief

First Motion Before the Family Court

• On submission of a petition, both parties must appear in person and make statements under oath.
• The court conducts an inquiry to verify the solemnization of marriage and the truth of the petition.
• The court records the statements of the petitioners (First Motion).
• A six-month cooling-off period is granted for reconsideration.
• During this period, either party may withdraw consent.

Second Motion Before the Court

• After the cooling-off period (six to eighteen months), the couple must reappear for the Second Motion.
• If reconciliation is not possible, the court may grant a divorce decree.
• The petitioners can withdraw consent any time before the decree.

Waiving of Six Months Cooling Period

• The cooling period allows for reconsideration and reconciliation.
• In cases where further reconciliation is unnecessary, courts may waive the six-month period.
• Exceptional cases allow the waiver based on legal precedents.

SC Judgment on Waiving of Six Months Cooling Period

• In Amardeep Singh v. Harveen Kaur, SC stated conditions for waiver:
  • Six-month period is already over before the first motion.
  • All efforts for mediation and conciliation have failed.
  • Differences between parties, including alimony and custody, are settled.
  • Waiting period only prolongs agony.
• The waiver application can be filed one week after the first motion.

Representation by Power of Attorney

• Spouses must be present for first and second motions.
• If a party cannot attend, they may be represented by a power of attorney holder.
• Video conferencing may be allowed at the court's discretion.

NRIs Can File Petition in India

• NRIs married in India can file for mutual divorce in India.
• They may also file in a foreign country under local laws.
• Foreign court decrees are conclusive under Section 13 of the CPC, 1908.

Divorce Before Notary Invalid

• Notaries under the Indian Notaries Act, 1952, cannot grant divorce.
• Hindu marriages can only be dissolved through a family court decree.

Resettling Lives When Marriage is Unworkable

• Only a Family Court has jurisdiction to grant mutual divorce.
• After divorce, parties return to their legal status prior to marriage.
• If a marriage is unworkable, emotionally dead, or irreparable, divorce allows parties to move on.

Additional Reading:

1. Hindu Marriage Act, 1955 - https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
2. The Family Court Act, 1984 - https://www.indiacode.nic.in/bitstream/123456789/16127/1/a1984__66.pdf
3. Rules Framed by the High Court of Kerala to Regulate Proceedings under the Hindu Marriage Act, 1955 - https://www.divorcelawyerindia.com/rules-of-various-high-courts-under-hindu-marriage-act-1955-part-xi/
4. Civil Rules of Practice Kerala
5. Amardeep Singh v Harveen Kaur - http://www.lawyersclubindia.com/files/8784_20170913090055_waving_6_months_period_in_mcd_allowed_by_sc_2017.pdf
6. Amit Kumar v Suman Beniwal - https://indiankanoon.org/doc/159260134/

Also Read:

• How To File For Mutual Divorce In Delhi
• Divorce With Mutual Consent Under Hindu Marriage Act 1955
• Mutual Consent Divorce