Mutual Divorce
Mutual Divorce Lawyer in Delhi :
Our Best Divorce Lawyer In Delhi helps clients deal with divorce cases, both mutual and contested, child custody cases by providing customized legal solutions.
Having an experienced Best Divorce Lawyers In Delhi divorce lawyer is the only way to find quick solutions within the time frame as an individual must get time to restart new life.
What is Divorce by Mutual Consent?
- Section 13-B of the HMA Act 1955 provides for divorce by mutual consent. period of separation is 1 year)
- Section 28 of the Special Marriage Act, of 1954 provides for divorce by mutual consent.
The Conditions required under section 13B of the Hindu Marriage Act are as follows:
- Husband and wife have been living separately for a period of one year or more,
- That they are unable to live together,
- And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved. Under these circumstances, a Divorce by Mutual consent can be filed.
Important Things To Remember While Filing Divorce Petition
- The partners (referred to as parties in legal terminology) must have been separated for at least one year before filing the divorce petition.
- Proof of marriage must be submitted in court in order to file the divorce petition.
- The parties must provide their individual, recent photographs while filing the divorce petition
- The parties must also provide their proof of residence to the court.
Mutual Consent Divorce Under Hindu Law: 13-B. Divorce by mutual consent.-
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
Divorce by mutual consent
In 1955, the government of India passed a law that stated that if mutually two people decide to end their marriage, they can easily file a petition in court. This leads to peaceful separation.
The process might get sorted a bit, yet, there are many legal challenges that have to be faced. Therefore, getting a mutual Divorce Lawyer on board would make it easier for both parties.
We ensure that you have a peaceful journey throughout and all the hassle is taken care of by us. After all, you are already occupied with the emotional and mental burden of parting ways with your companion.
Documents required for Mutual Consent Divorce
- Marriage Cards or Marriage Certificate
- Two Joint Marriage Photograph
- Two Passport Size photographs of both parties
- Adhaar Card and/or any other current address proof of both parties
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Procedure for Filing for Divorce
The procedure for seeking a divorce by mutual consent is to start with getting a petition for Divorce by Mutual Consent drafted by Divorce Lawyer, & subsequent filing of the petition jointly, supported by affidavits duly signed by both Husband & Wife attested by Oath Commissioner /Notary, accompanied with Vakalatnama, before Family court located in the district where parties to marriage last resided together or district where the wife is presently residing.
Petition for mutual consent divorce can be filed at any of the following places:-
- Place where marriage was solemnized.
- Place where husband and wife last resided together.
- Place where the wife is residing at the time of filing of the Petition
Once the petition for divorce by mutual consent is filed, & comes for a hearing both Husband & Wife are required to be present in the Court for the recording of the joint statement.
In the either Husband or Wife is unable to physically present for any reason whatsoever, such party can appear through power of attorney granted by the party for this purpose.
Such power of attorney holder preferably should be a family member of such spouse who is not able to present himself/herself before the court.
On the date of the hearing, both Husband & Wife along with their lawyers, are required to appear before the Court.
The Court may talk to both parties jointly &/or independently and try to explore any possibility of a settlement between them.
In case the Court is unable to settle the disputes and differences between the parties, it will move ahead with the mutual consent divorce proceedings.
Divorce by Mutual Consent is primarily divided into two stages, the First Motion & second Motion, & time gap/cooling period of a minimum of 6 months & Maximum of up to 18 months is mandatory.
During both First Motion & Second Motion, Statements of both Husband & Wife are recorded before the Family Court Judge, to the effect that they have moved the mutual consent divorce petition out of their own free will and without any force or undue influence from any person.
Both parties are also required to sign their statements made before the Family Court.
Subsequent to the satisfaction of the Court regarding the above, an appropriate order is passed and the 1st movement of the mutual consent divorce proceedings would come to an end.
In some places like Haryana or another state, the court gives a date after 6 months, when a joint statement for the second motion is recorded, while for Family courts located in Delhi, after a period of 6 months.
Which is also termed as the ‘cooling off period, a fresh Petition for 2nd motion for the mutual consent divorce as contemplated under Section 13-B(2) of the Hindu Marriage Act has to be prepared and filed by our legal light consulting team lawyer.
A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage.
After statements by both husband and wife are recorded for the Second motion & if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a Decree of Divorce.
The entire process and procedure for the 2nd motion are usually the same as it is for the 1st motion.
If a joint statement for the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce.
In the event, either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition or refuses to make a joint statement for Second Motion and if the concerned party continues to refuse consent to the Mutual Consent divorce petition, the court no longer has the right to grant a divorce decree.
The law is well settled that either of the parties may withdraw their consent at any time before the passing of the decree.
The most important requirement for a grant of divorce by mutual consent is the free consent of both parties.
In other words, unless there is a complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent.
In Sureshta Devi v Om Prakash : It has been held by Supreme Court that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.
What can the other partner do under such circumstances?
Not all estranged couples agree on the desirability, grounds, or conditions of the divorce.
In such situations, there is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of Section 13 of the Hindu Marriage Act, 1955.
This forms the case for the filing of a contested divorce. Some of the grounds on which either spouse can file for a divorce in India are:
- Cruelty, which includes Infliction of physical and/or mental CRUELTY on the petitioner by the spouse, which may result in danger to the life and health of the former.
- Adultery on the part of the spouse of the petitioner, or any other sexual relationship outside marriage.
- Willful desertion or abandonment of the petitioner by the spouse, for a continuous period of two years in India, before the date of the filing for divorce.
- The other spouse is of unsound mind, Leprosy; venereal disease
- Conversion of religion by the other spouse
- A spouse having renounced the world or being missing for a period of more than 7 years
When the divorced persons can remarry?
Depending on the nature of the decree, after granting of Divorce by Mutual Consent, Parties can marry at any time after granting of Divorce by Mutual Consent, however, in case of a divorce granted by courts duly contested by another spouse, the Divorced individual may re-marry after the expiry of three months from the date of the decree if no notice of appeal is received by the person remarrying from the other person.
Under Civil/Family Law:
- Petition for Divorce under various grounds mentioned under sections 13 (1) & (2) and 13B of the Hindu Marriage Act viz. (i) on the ground of mutual consent (ii) Petition on the ground of cruelty, desertion, impotency, adultery, etc.
- Application u/s 24 of HMA for seeking interim maintenance and expenses by wife;
- Petition for custody of children under provisions of Guardianship and Wards Act, 1955
- Application u/s 9 of HMA for restitution of conjugal rights;
- Suit for partition of the joint property owned jointly by husband and wife.
- Application u/s 10 of HMA for Judicial Separation;
- Application u/s 12 of HMA for seeking a declaration of Marriage Void;
Under Criminal Law:
- Criminal complaint Under section 498-A read with 406 of Indian Penal Code, 1860 and its Proceeding before CAW cell and Magistrate;
- Complaint under Protection of women from Domestic Violence Act 2005;
- Complaint under Dowry Prohibition Act;
- An application under section 125 of the Code of Criminal Procedure 1973 seeking maintenance by wife;
- In filing or defending Bail and anticipatory Bail at any level, before any court namely the court of the session or High Court and supreme court;
- In filing or defending various complaints under the various sections of the Indian Penal Code as applicable in the particular case;