Procedure for Divorce by Mutual Consent in India
Written by Bhaviya Singh
Introduction
Divorce by mutual consent is an amicable approach for couples to end their marriage when both parties agree that the marriage has irretrievably failed. This method is governed by various personal laws in India, such as Section 13B of the Hindu Marriage Act of 1955, Section 28 of the Special Marriage Act of 1954, and Section 10A of the Divorce Act of 1869 for Christians. Mutual consent divorce is recommended because it is non-adversarial, allowing spouses to part ways without repercussions or lengthy court fights. It reduces emotional and financial pressure on both parties, resulting in a quicker resolution than disputed divorces.
Although it appears simple, the legal procedure requires attention to specific standards and formalities. Before the court may give a decree, both parties must not only agree to divorce, but also address and settle crucial issues such as child custody, alimony, and property distribution. This article discusses the legal structure and actions required in filing for mutual consent divorce under these rules.[1]
1. Legal Provisions for Mutual Consent Divorce
Divorce by mutual consent requires both parties to agree to the dissolution of their marriage without protest. The essential conditions under the applicable legal provisions are as follows:
- Section 13B of the Hindu Marriage Act, 1955: This clause affects Hindu, Sikh, Jain, and Buddhist spouses. The parties must have been living separately for at least a year and agree that the marriage is irreparably broken.
- Section 28 of the Special Marriage Act, 1954: This clause applies to all couples married under the Special Marriage Act, regardless of religion. Similar to the Hindu Marriage Act, the spouse must have lived apart for at least a year before seeking for divorce.
- Section 10A of the Divorce Act, 1869: Applicable to Christian couples, this section mandates that the parties should have lived separately for at least two years before filing a joint petition for divorce by mutual consent.
2. Conditions to be Satisfied
Before filing for divorce by mutual consent, the following conditions must be met:
- Living separately: The spouses should have been living separately for a specific period (one year under the Hindu and Special Marriage Acts; two years under the Divorce Act).
- No possibility of reconciliation: Both parties must declare that they have failed to reconcile their differences and that the marriage has broken down irretrievably.
- Mutual agreement: Both parties must consent voluntarily to the divorce without coercion or undue influence.
3. Filing of the First Motion
The divorce process begins with the filing of a joint petition, commonly referred to as the First Motion, in the family court by both parties. The petition should include:
- A statement by both spouses affirming that they have been living separately for the requisite time period.
- Proof of their marriage (such as the marriage certificate).
- Details regarding the settlement of issues such as child custody, alimony, and division of property.
Upon receiving the petition, the court examines it and may record the statements of both parties to ensure that they are proceeding voluntarily and without coercion. If the court is satisfied with the petition, it passes an order acknowledging the filing of the First Motion.
4. Cooling-Off Period
The Hindu Marriage Act provides for a six-month statutory cooling-off period after the First Motion is accepted. This phase is intended to give the couple one final chance to reconcile. However, the Supreme Court in its decision in Amardeep Singh v. Harveen Kaur (2017) found that the cooling-off period is not required and can be waived under certain circumstances if the court is convinced that the marriage has broken down irretrievably.
5. Filing of the Second Motion
After the cooling-off period (or immediately if waived), the couple must submit a Second Motion to confirm their intention to end the marriage. During this stage, the court re-examines the couple to ensure that their decision to divorce is mutual and agreed.
The court may also review the terms of the settlement agreement related to:
- Custody of children (if applicable),
- Division of assets and liabilities,
- Alimony or maintenance, and
- Any other disputes between the parties.
6. Final Decree
When the Second Motion is submitted and the court determines that all statutory prerequisites have been met, the court issues a decree of divorce declaring the marriage dissolved. The decree is final and binding for both parties. Both parties are then free to remarry or live independently as they choose.
7. Waiver of the Cooling-Off Period
The six-month cooling-off period can be waived under certain circumstances. As per the Supreme Court’s ruling in Amardeep Singh v. Harveen Kaur, the cooling-off period may be waived if:
- The parties have been living apart for a longer period than one year before filing the petition.
- The settlement regarding alimony, child custody, and property division has already been decided.
- The court is satisfied that waiting further would serve no purpose and that the marriage has irretrievably broken down.
Conclusion
Divorce by mutual consent is an effective and less confrontational option for couples looking to end their marriage. The legal system eliminates disagreements and guarantees that the divorce procedure runs smoothly by requiring both parties to agree to it. However, in order for the divorce to be valid under Indian law, all legal criteria, including waiting periods and settlement agreement provisions, must be fulfilled. To avoid future disagreements, the parties must properly disclose all assets and settle financial and custodial matters with clarity. Although divorce by mutual consent is a simple process, both parties should explore mediation or counseling to ensure that their decision to part ways is permanent. This path provides an opportunity for dignity and respect to prevail, reducing the emotional and financial toll typically associated with contested divorces.
