Marriage as per the Hindu law is the act of ultimate sanctity. In earlier times, there was no provision for a Hindu marriage to end. Once, two persons took the seven pheras, in front of the holy fire, they were made partners for seven lifetimes and there was no scope of dissolution.
With the changing trends in the society, divorce became a part of the Hindu moral and legal structure.
Divorce for Hindus as per the law, can be of two types. – Mutual or contested.
- Mutual Divorce- Divorce by mutual consent, basically means a divorce not involving the courtroom, where both the husband and wife mutually decide to separate and sign a joint petition whereby stating that they have bene living separately for more than a year.
In India, divorce by mutual consent is the fastest, respectful and dignified way to get separation as in this case both the partners who believe that they cannot live together harmoniously and voluntarily agree to all terms and conditions of their joint petition to separate legally. Such a joint petition contains matters of maintenance, custody of child, division of assets, shelter of the spouse etc.
- Contested Divorce- Contested divorce is where one partner applies for the divorce and is ready to separate from the spouse while the other partner does not want wish to separate. In such a case, the divorce proceedings are heard in front of a judge and matters such as property dispute, Child custody, maintenance and alimony I decided not by the partners but by the judge.
A contested divorce can be filed only on certain grounds which are mentioned under the law. Such grounds are – cruelty, adultery, dissertation, conversion, mental disorder, communicable general diseases, etc.
What is the procedure for filing mutual divorce petition in India?
Filing for a mutual divorce is the most easy and fastest method to separate from the partner. The Hindu Marriage Act has provided certain steps to be followed while opting for a mutual divorce. –
Step 1- File a joint divorce petition:
A joint divorce petition can be filed at any of the following places;
- The appropriate court where the couple last lived.
- The appropriate court where the couple’s marriage was solemnized.
- The appropriate court in the area where the wife currently resides.
This joint petition must be mutually filed by the parties, requesting legal dissolution of marriage on the grounds that both the partners have been living separately for more than a year and cannot live together anymore. The petition has to be signed by both the parties and contain certain documents, such as- the wedding card, marriage certificate, photograph of the marriage, passport size photographs of both the parties, proof of address of both the parties etc.
Step 2- First Motion (appearance of both the parties in the court):
The second step for the procedure of mutual divorce is the appearance of both the parties in the family court after the petition has been filed. The court fixes this date and the parties appear along with their represented counsels.
Step 3- Scrutiny & Recording of statement on oath:
The court in the next step, scrutinizes the petition and all the supporting documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. The court, may attempt to reconcile the differences between the parties. If unsuccessful, the divorce proceedings are proceeded with.
Step 4- First Motion:
After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. In some cases, this takes place on the same day as of recording of the statement.
Step 5- Cooling off period:
After completion of the first motion, a 6 month cooling off period is given to the parties, before filing the second motion. This is done as a last chance for reconciliation between the parties. This has to be filed maximum within a period of 18 months from the date of the filing of the petition for the first motion. In a recent judgement, the Supreme Court has stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court.
Step 6- Appearing for Second Motion:
After 6 months of the first motion or by the end of the reconciliation period, if both parties still don’t agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording of statements before the court. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.
Step 7- Decision of the Court:
Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce.
Can mutual divorce be challenged in court?
A divorce by effect of mutual consent of both the parties is only an agreement until the court passes a decree on it. After the court hears both the sides and agrees to pass a decree of divorce upon realization of no possibility of reconciliation, the divorce decree becomes legal and binding on both the parties. The divorce decree passed, cannot be challenged in the court. Since, the only essential required in a mutual divorce is voluntary & free consent by both the parties. If in any case, it is found that the consent of one of the parties was obtained by fraud, coercion or undue influence, then the parties may approach the court to reconsider the decree of divorce.
How can GS Bagga & Associates help you?
Greetings! When people marry, they do so with a hope of spending a lifetime together, sharing joys and sorrows together. Sometimes, marriages do not work out as while living together, they realize that they both are not able to cohabit together as a couple and it would be bets to part their ways. In such situations, lawyers play a major role in getting you a divorce. The offices of G.S. Bagga & Associates have been experienced in family law and matrimonial issues for over 7 years now. If you’ve found the above information satisfying, you can get in touch with us and can book a free consultation. We would love to support you with our legal expertise in the matter. Feel free to contact us, anytime.