There are different species of divorce in India and one of it is mutual consent divorce available under the personal and secular law(s) relating to the institution of marriage. Mutual consent divorce refers to the termination of marriage with mutual consent of both spouses.
Mutual consent divorce serves as a refuge to the ones who do not wish to get trapped in the tedious process of the court which takes years and years to conclude as you can terminate a marriage under mutual consent divorce within a few months.
The provisions/laws relating to divorce by mutual consent is provided under Section 13-B of the Hindu Marriage Act, 1955, Section 32-B of the Parsis Marriage and Divorce Act, 1936, Section 10-A of the Indian Divorce Act, 1869, and Section 28 of the Special Marriage Act, 1954. So, what is the procedure for getting a mutual consent divorce in India?
Step by step procedure of getting a mutual divorce in India:
1. Get an efficient divorce lawyer:
Even though a divorce by mutual consent takes lesser time and requires only two to three court visits, you cannot do it without retaining the best divorce lawyer in Chandigarh. If you are desirous of obtaining a divorce by mutual consent then you should contact the best divorce lawyers in Chandigarh who will assist you in a smooth transition during the divorce process.
2. Separation before filing the divorce:
You will have to confirm that you and your spouse have been living separately for a year 13B of the Hindu Marriage Act, 1955, Section 32-B of the Parsis Marriage and Divorce Act, 1936, and Section 28 of the Special Marriage Act, and this period is of separation is of two years under Section 10A of the Indian Divorce Act, 1869. Separation is used loosely, and it does not necessarily mean that the spouses are required to be residing at separate accommodations. If the spouses can establish that they have not been performing their marital obligations even though they have been living under the same roof, then the requirement of separation is fulfilled.
3. No divorce petition before completion of one year of marriage:
Under Section 14 of the Hindu Marriage Act, 1955, no petition for divorce shall be entertained by any Court before the expiry of one year of marriage.
4. Settlement Deed:
A settlement deed is a document whereby the spouses outline the terms and conditions during and after the divorce relating to maintenance, child custody, alimony, child maintenance, joint property, etc. Though there is not a compulsion that a mutual divorce petition must be accompanied by a settlement deed, however, it is suggested that you get one prepared and attach the same with your mutual divorce petition.
5. Identify the place you wish to file your divorce petition:
The place of filing the petition for divorce plays a major role because if you file your divorce in the wrong jurisdiction, then it will lead to dismissal of your case and ultimately will be a waste of your time and resources.
Under the Hindu Marriage Act, 1955, and Section 31 of the Special Marriage Act, 1954, a mutual divorce petition can be filed in the following places:
i. The place of solemnisation of marriage;
ii. The place where the spouses last resided together; and
iii. The place where the wife is presently residing.
6. Divorce petition:
A petition for mutual divorce should be well drafted and it should include the following:
i. Blame game is a big NO: The idea behind mutual divorce is that both the parties admit their responsibility which brought the marriage to a halt. Thus, the mutual divorce petition should not level accusations against either party.
ii. Proof of marriage: Proof of marriage can be anything from a wedding card, wedding pictures to a marriage certificate and it is a must that proof of marriage is attached with the mutual divorce petition.
iii. Passport size pictures of both the spouses: The mutual divorce petition needs to be accompanied with passport size picture(s) of both the spouses.
iv. Identity documents of parties: A petition for mutual divorce needs to have identity documents of both the spouses and if there are children (issue) born out of the wedlock then the identity document of the said child/children need to be attached with the divorce petition.
v. Settlement Agreement/Deed: A settlement agreement/deed makes the transaction under the mutual divorce easier as it lays down the terms and conditions of both the parties during and after the divorce.
7. First statement:
The parties (husband and the wife) need to record their first statement before the Court whereby they are required to reiterate the contents of their mutual divorce petition. After the first statement is recorded in the court, the court gives a period of six months, i.e. the cooling-off period, to the spouses before the second statement is recorded. This period is granted by the court as an attempt to let the party rethink their decision. However, now the parties can waive this waiting period. To know how? Click here.
8. The second statement should be recorded within 18 months:
The second statement in a mutual divorce petition can be made any time after the cooling-off period but within 18 months from the date of the filing of the mutual divorce case. If the parties do not make a second statement within 18 months, the court shall dismiss the petition.
9. Get the divorce decree:
Once the second statement is recorded, the divorce decree is passed and divorce is finalised. You can get the divorce decree from the concerned court by giving the court fee applicable.
We have now completed all the steps involved in obtaining a mutual consent divorce in India. Make sure that you retain the services of the best divorce lawyers in Chandigarh for your divorce-related queries. Do you have more questions in mind? Contact us, now.