Mutual Consent Divorce | 01
LAW SIMPLIFIED BY PALLAVI PRATAP
Hi! My name is Pallavi Pratap and welcome to Law Simplified. This show is produced by Motor Mouth Media. The aim of this podcast is to simplify law for the common man, to know how law can come to their rescue. By way of this podcast, I intend to give you all an understanding of the Basics Of Law in everyday life.
This is the first episode and I have decided to talk about the most often asked question, DIVORCE. Even though there are no statistics available to adequately summarise the incidence of divorce in India but a rough estimation is that of, 11 in every 1000 marriages. Although, in my experience as a lawyer practicing in family law, I believe this figure must be much much more.
In India, marriage, and therefore divorce, is governed by different personal laws, depending upon the religion of the married couple. So, Hindus which includes Sikhs, Jains, Buddhists are governed by the Hindu Marriage Act,1955 while Christians are governed by Indian Divorce Act, 1869 and the Indian Christian Marriage Act,1872.
The Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by Parsi Marriage & Divorce Act-1936. Apart from the above laws, other marriages of couple coming from different religious background, are governed by the Special Marriage Act, 1954.
Now typically in India, under the Hindu Marriage Act, divorce can take place in either of the two ways.
The easiest and the most accessible way is to obtain Divorce by mutual consent. Mutual Divorce, is the most effective and non-contentious manner, in which couples obtain divorce amicably. It is a legal process of separation, when both the husband and wife, want to separate with their own will, after marriage. Both husband and wife, can apply for the divorce by mutual consent, after agreeing on terms of settlement of such divorce.
The other manner, in which Divorce, is obtained is through, what is called as Contested Divorce or, divorce without mutual consent. This is typically a process in which the dispute is resolved by the Court of law and this kind of proceeding drags on for years. It is filed without the prior approval of either of the spouse (husband or wife). Common ground for filing such divorce petition is cruelty, adultery, desertion, conversion, mental disorder, communicable disease, presumption of death or in case of renouncing the world.
Delving further on Mutual Consent divorce, Section 13B was inserted in the Hindu Marriage Act in 1976 to introduce divorce through mutual consent and provides for a total 18 months before a decree for divorce can be passed.
Under Section 13B(1), a divorce petition can be moved by a couple following a judicial separation of one year. This may be followed by another six months of waiting period under Section 13 B(2) for getting a decree.
With regards to the cooling off period of 6 months, the Hon’ble Supreme Court in Amardeep Singh v. Harveen Kaur observed that provision of Section 13B(2) is not mandatory but directory. Apex Court has stated that, the courts can grant divorce after waiving of six months’ waiting period on being satisfied that the “waiting period will only prolong their agony” and that all efforts of conciliation have been futile. The courts, waiving of the cooling off period will also consider whether the estranged couple has settled all differences relating to alimony, custody of children etc.
Now under the Hindu Marriage Act, Section 14 provides that No petition for divorce to be presented within one year of marriage. Although the Court may relax this if it is shown that it will be an exceptional hardship to the couples. However the caveat in such cases is that if the Court believes that there is any misrepresentation or concealment, then it may extend the period of one year of separation or dismiss the petition without prejudice to any of the parties.
Let me now take you through the process of Divorce by mutual consent first. The first and most important part of this proceedings is to sort out all the important issues. For example, Child Custody. It is to be decided as to which partner will get the child custody after divorce.
Then alimony or maintenance to be paid. If one of the partner is unable to meet her daily expenses then other needs to pay her a certain sum of amount as alimony (one time settlement or monthly payment). It is subject to mutual understanding between the partners (husband and wife).
Another important factor to decide would be settlement of property and assets which were jointly acquired during the sustenance of marriage. Settling the ownership rights of property and asset like dwelling house, bank accounts, movable assets like jewellery, car are to be distributed between the parties (Husband and wife)
Let us now quickly run through the documents required for filing Mutual Divorce Petition:
- Marriage Certificate
- Address Proof – Husband and Wife.
- Four Photographs of Marriage.
- Income tax Statement of last 3 years.
- Details of profession and Income (Salary slips, appointment letter)
- Details of Property and Asset owned
- Information about family (husband and wife)
- Evidence of Staying separately for an year
- Evidence relating to the failed attempts of reconciliation
There is always confusion in minds of couples as to where to file Mutual Divorce petition. The jurisdiction is very clearly given as the place where the couple last resided together as husband and wife or where the husband or wife is presently residing.
Now let me take you all through the step-by-step process for obtaining divorce by mutual consent.
Step 1: Filing of the Petition in the Family Court
A Joint petition is moved by both the husband and wife seeking for dissolution of marriage. Inorder to get the decree of divorce, the petition typically states that since both the husband and wife are unable to reconcile their differences and live together, they have mutually agreed to dissolve their marriage. It is further written in the petition that they have been living separately for a period of one year or more. This petition has to be signed by both the parties.
Step 2: Appearance before the Family Court Judge for First Motion for Divorce
On the day of first motion for divorce, both the parties enter their appearance in the Court, along with their legal counsels. Family Court Judge will go through the contents of the petition along with all the documents presented in the Court. By law, the Family Court has to refer the matter for mediation such that reconciliation can occur and differences between the spouses can be sorted. However, if this is not possible, the matter proceeds further.
Step 3: Statement on Oath
After going through the contents of the application, Court may order the party’s statements to be recorded on oath.
Step 4: First Motion order is passed, 6 Months Time period is given for the Second Motion
An order on the first motion is passed by the court. After this, a six months period is given to both the parties to a divorce, before they can file the second motion. The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court. Although in many family courts these days, an application for waiver of cooling off period is filed by which, if the Learned Judge is satisfied, then the 6 months cooling off period can be waived off and Second Motion can be filed immediately.
Step 5: Second Motion hearing and Final Decree
Once the parties have decided to go further with the proceedings and appear for the second motion, they proceed with the final hearings. This includes parties appearing and recording of statements before the Family Court.
If the court is satisfied after hearing the parties that the contents in the petition are true and that there cannot be any possibility of reconciliation and cohabitation and the issues pertaining to alimony, custody of children, properties etc are settled, Court can pass a decree of divorce declaring the marriage to be dissolved.
- In Contested divorce
STEP 1: Filing of petition by the husband or wife.
One of the parties files the petition on grounds of cruelty or alienation and the case gets listed before the Learned Family Court Judge.
STEP 2: Court issues summons and seeks reply from the other spouse. Once notice is issued, the Court then seeks for the other party to give their side of story. In this stage typically it is seen that, the other side, in order to delay the proceedings will not accept service of notice etc. Therefore, many High Courts are accepting service through whatsapp, email or electronic mode of communication.
STEP 3: Court may suggest reconciliation.
As already informed, it is mandatory for the Family Court judge to refer matter for mediation. It is only after mediation has failed that the matter can proceed further.
STEP 4: Examination and cross-examination of witnesses and evidence.
At this stage, the lawyers of both the parties examine their witnesses typically husband, wife or relatives, friends, or anyone who could shed light on the dispute between the couple. This is when one witnesses the ugliest courtroom exchanges.
STEP 5: Counsels for both parties present final arguments.
At this stage final arguments regarding the divorce, maintenance, alimony, child custody, etc. is argued and the Ld. Judge then typically reserves the order.
STEP 6: Decree of divorce passed by the court.
Once the order is pronounced and if there are no appeals against the said order, then the divorce decree is pronounced.
That was a basic information regarding the process of divorce under Hindu Marriage Act. In next episode, I will be talking about child custody under matrimonial laws.
Before I end today’s show, thank you for listening to this episode, do feel free to write in to me with specific queries and it will be my endeavour to sort your queries. Also, if you are someone who is contemplating divorce, as word to the wise is to make it as little murkier as possible. It is always possible to get an amicable divorce as long as ego does not come in between. With that note, until next time, this is Pallavi saying Good Bye and hoping to have you all in our next episode. Stay tuned.