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Blog posts : "divorce in india"

Mutual Divorce; A Legal View

March 14, 2017

Mutual Divorce is available under the provisions of Indian Law. Under Sec 13 B of the Hindu Marriage Act, 1955, Divorce can be granted if the parties are willing to get separated mutually. The initial requirement is of separation of the couple for 1 year or more post marriage and further there is no scope of cohabiting whatsoever. In most exceptionally hard situation and depravity this period can be exempted under Sec 14 (1) of HMA act.

Mutual Consent means both parties agree for judicial separation. But before filing the case mutually, couple should reach consensus on alimony and maintenance issues. Child custody is also an important aspect to be taken care of. 

Before Mutual Divorce the parties should decide on the following:

1 Child Custody whether joint or shared, their marriage and education, Visitation rights (holidays or any specific day or time specifically), Maintenance.

2 Alimony, stridhan , Maintenance (One time, monthly or yearly).

3 Joint Accounts or properties in the name of both have to be sorted.

4 Any other necessary arrangement that the party thinks should be done before approaching the court for mutual divorce should be cleared between the couple amicably. 

Mutual Divorce poses to be the fastest, easiest and cheapest way of Judicial Separation out of all. Otherwise, the contested divorce can be stretched up to 3-4 years easily.

Here are the few questions you would like us to answer first:

  1. How long does it take to get the mutual Divorce? After 6 months of filing the petition or maximum upto 18 months if both parties are willing at all times.
  2. How to file the case? You can look for sample drafts easily available online or consult a professional lawyer to draft your case. Once the case is drafted along with your affidavits bearing signature of both parties, case gets filed in the family court of local jurisdiction. On the first day of a case, the parties have to be present and give statement on oath;  we both have mutually agreed to be separated with free will and consent added there is no collusion or coercion between them.

3.How to decide the Jurisdiction? In the family court of the city/district where both the partners have last resided.

4.What is First motion and Second motion? The family courts generally on the first day of hearing takes duly sworn affidavits of the partners and grants them 6 months of cooling off period to reconsider their decision. This is called First Motion. On expiry of 6 months period, the parties can again present themselves before the court for making a second motion and reconfirming their consent given earlier. The decree of divorce is only granted after the second motion. A person governed under Hindu Law can only remarry if granted a valid decree of divorce in India not otherwise.

5.What If one party withdraws the case?  Then you have to probably move towards a contested divorce under Sec 13 (1) of Hindu Marriage Act, 1955 and file a separate application. The Mutual Divorce petition would stand dismissed or the party can withdraw the case.

6.Can the other person get married before the courts grant decree of divorce? No way. The party can be held liable for Bigamy under Indian Penal Code which separately draws punishment of seven years imprisonment.

7.If the other party is willfully absent from court’s proceedings, what can be done? The other party should wait for at least seven years to file an application before the court.

8.How much is the fee for Mutual Divorce?  The Advocate can charge you either for the complete case or per motion depending upon your capability to pay. Usually, the fee structure ranges from Rs 30,000 to Rs 1, 00,000 or even more. The contested Divorce cases costs you even more and that’s why one should always reconcile their differences and file for a mutual difference to buy time for each other. There is an increasing need for standardizing legal fees in India as Advocates charge their fees without any standards.

9.Who will bear the litigation expenses? The litigation expenses have to be bared jointly by the couple seeking mutual divorce.

10.Is the Couple required to be present in Court all times? Yes, the presence of couple will speed up the entire process of Mutual Divorce. Having an attorney holder representing your case will linger on the process and will get you few more dates nothing else. It is better for the couple to be present in court for its satisfaction.

Marriages are not considered sacrosanct anymore and if it’s not working, there is no shame in aborting it. The rising middle class of India has understood this clearly and metro cities are far ahead in filing divorce petitions where work-life balance is most difficult to sustain.

Increasing consumer mentality is also a factor causing havoc in marriages. People no longer want to curb their wishes or make sacrifices. This independent generation wants to live life on their own terms. The role of women’s in houses has changed significantly who are trying hard to match their counterparts.

Mutual Divorce can be the best way to end a failed marriage if things aren’t working. It is the cheapest, fastest and hassle free way to walk out of the marriage if it’s not working. 

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