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Mutual Consent Divorce in India: A Comprehensive Guide by Pankaj Kumar & Co Akanksha Roy Advocate
Mutual consent divorce refers to a divorce in which both parties agree to end their marriage and mutually decide on the terms and conditions related to the divorce, such as maintenance/alimony, child custody, and division of joint property. This type of divorce is less contentious and faster way to dissolve a marriage compared to contested divorces, where one party may not agree to the divorce or the terms set forth.
Provisions for Mutual Consent Divorce in India
In India, mutual consent divorce is governed by various laws, primarily:
1. The Hindu Marriage Act, 1955
2. The Special Marriage Act, 1954
3. The Parsi Marriage and Divorce Act, 1936
4. The Divorce Act, 1869 (for Christians)
Provisions under The Hindu Marriage Act, 1955
Section 13B: This section provides for divorce by mutual consent among Hindus, which includes Hindus, Sikhs, Buddhists and Jains. To obtain a divorce under this provision:
Both parties must have been living separately for a period of one year or more.
That they have not been able to live together.
They must mutually agree that the marriage should be dissolved.
They must present a joint petition before the court stating that they have not been able to live together and have mutually agreed to dissolve the marriage.
Provisions under The Special Marriage Act, 1954
Section 28: This section allows for divorce by mutual consent among couples married under this Act. The conditions are similar to those under the Hindu Marriage Act, including the requirement for the parties to live separately for a specified period before filing a joint petition for divorce.
Provisions under The Parsi Marriage and Divorce Act, 1936
Section 32B: For Parsi couples seeking divorce by mutual consent, this section outlines the conditions similar to other Acts, such as living separately for a stipulated period and mutually agreeing to the divorce.
Provisions under The Divorce Act, 1869
Section 10A: This section provides for mutual consent divorce for Christian couples. It requires the parties to have been living separately for a specific period and to mutually agree to the divorce.
Procedure for Mutual Consent Divorce
The procedure for obtaining a mutual consent divorce generally involves the following steps:
1. Filing a Joint Petition (First Motion)
Both parties submit a joint petition to the family court.
Declare living separately for at least one year and inability to reconcile.
Specify terms agreed upon: maintenance/alimony, child custody/visitation, and asset division.
In some courts, include a settlement agreement detailing the agreed terms.
2. Court Hearing
Both parties or their authorized representatives must appear before the court.
Confirm mutual consent for divorce and agreement on terms of settlement.
3. Court Decision
In Delhi: The court approves the first motion and issues a detailed order.
Outside Delhi: The court adjourns the case for a hearing after a cooling-off period of six months.
4. Cooling-off Period
A period of six months after the first motion.
If living separately for over 18 months, the second motion can be filed as early as one week after the approval of the first motion.
Application for waiver of the cooling-off period can be filed if necessary.
5. Second Motion
File the second motion petition after the cooling-off period or as per the exceptions mentioned.
Both parties must appear before the court or through their Special Power of Attorney Holder.
Confirm consent for divorce and terms of agreement.
6. Final Decree
Upon verifying the consent and terms, the court grants the divorce decree.
The marriage is legally dissolved, allowing both parties to remarry.
What is ‘Cooling-off” period in Mutual Consent Divorce?
The "cooling-off" period in mutual consent divorce refers to the waiting period after the initial filing of the joint divorce petition. The purpose of this period is to provide both parties with an opportunity to reconsider their decision to dissolve the marriage and to explore the possibility of reconciliation.
In India, the cooling-off period is six months. During this period:
The parties may reconsider their decision for mutual consent divorce and resolve their differences and possibly save their marriage.
Both parties are required to live separately and not cohabit during this period to demonstrate their mutual consent and seriousness about the divorce.
Can "Cooling-off" period be waived?
Yes, the cooling off period can be waived by the Court. The Supreme Court of India has made several significant judicial pronouncements regarding the cooling-off period in mutual consent divorce cases. In case of ‘Amardeep Singh vs. Harveen Kaur (2017)’ the Supreme Court recognized that there may be exceptional circumstances where the court can waive the cooling-off period. This could include situations where the parties have genuinely settled their differences, they are already living separately for more than 18 months, there is no chances of reunion between the parties, and waiting for the full six months would be detrimental to their interests. However, the decision to waive the cooling-off period is within the discretion of the court. The court will consider the facts and circumstances of each case before making a decision.
Meaning of "Living Separately"
For filing mutual consent divorce petition, both parties must have been living separately for a period of one year or more. What is the meaning of the term ‘living separately’. The term "living separately" generally implies that both parties are not living together as husband and wife in a shared household. This separation can be either physical or virtual, where the parties may live under the same roof but lead separate lives without any conjugal relations.
In landmark judgment of Smt. Sureshta Devi versus Om Prakash, the Supreme Court clarified that "living separately" does not necessarily mean living in different locations or having separate residences. The court emphasized that the parties can be considered to be living separately even if they are living under the same roof but leading separate lives without any marital relations.
Withdrawal of Consent for Mutual Divorce:
The Supreme Court's judgment in the Sureshta Devi vs. Om Prakash provided clarity on the issue of withdrawal of consent in mutual consent divorce under Section 13-B of the Hindu Marriage Act, 1955. The judgment emphasizes the importance of mutual consent as a fundamental requirement for granting a decree of divorce by mutual consent. Key Points from the Sureshta Devi Case
1. Continuity of Mutual Consent: The Supreme Court held that mutual consent should continue throughout the divorce proceedings until the divorce decree is passed. If one party withdraws consent at any stage, the court cannot grant a decree of divorce by mutual consent.
2. Joint Consent Required: The court clarified that both parties must give their mutual consent when moving the court with a request to pass a decree of divorce. If one party withdraws consent, the court lacks jurisdiction to grant the divorce decree.
3. Invalidation of Sole Consent: The court rejected the idea that the court could pass a divorce decree solely based on the initial petition without ongoing mutual consent. Such a decree would negate the essence of mutual consent divorce.
If either party withdraws their consent for mutual consent divorce at any stage before the court passes the divorce decree, the court cannot grant the divorce. The consent must be mutual and ongoing until the final decree is passed.
Penal Consequences of Unilateral Withdrawal of Consent
Unilateral withdrawal of consent for mutual consent divorce by either party can have penal consequences under certain circumstances. In the case of Rajat Gupta vs. Rupali Gupta, the Delhi High Court addressed the issue of the consequences of unilateral withdrawal of consent in mutual consent divorce. The court held that in case of unilateral withdrawal of consent for mutual divorce, a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree. In the event the aggrieved party approaches the court for initiation of contempt proceedings against the defaulting party for willful/deliberate breach of any of the terms and conditions of an undertaking/settlement agreement/consent order or a decree and takes a plea that as a consequence thereof, he/she has been placed in a disadvantageous position or has suffered an irreversible/grave prejudice, the court in exercise of its inherent powers of contempt, supplemented by the 1971 Act has the requisite jurisdiction to entertain the petition and direct restoration of status quo ante in every possible way. Besides directing the defaulting party to disgorge all the benefits/advantages/privileges that have/would have enured in its favour and restoring the parties to the position that was before they had arrived at such a settlement/agreement/undertaking and/or before the consent order/decree was passed in terms of the settlement arrived at/undertakings recorded, the court has the discretion to punish the defaulting party for civil contempt, depending on the facts of a given case.
Navigating the complexities of mutual consent divorce in India requires expertise and understanding of the legal framework governing such proceedings. At Pankaj Kumar & Co Akanksha Roy Advocate, we offer comprehensive legal guidance and representation to clients seeking mutual consent divorce, ensuring adherence to all statutory provisions and judicial guidelines. Our team of experienced advocates is committed to providing personalized solutions tailored to the unique circumstances of each case, safeguarding our clients' interests while facilitating a smoother transition through this challenging period. Trust us to guide you through the legal intricacies of mutual consent divorce, delivering efficient and effective solutions to help you move forward with confidence and peace of mind.
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