Divorce by Mutual Consent
As per Section 13-B of the Hindu Marriage Act, 1955, the individuals could ask for divorce by mutual consent through filing a petition before the court. Mutual consent implies that both the individuals had agreed on peaceful separation.
There are various laws of divorce for different religion. For example, the Hindus(which contains Sikh, Jain, Budh) are administered by the Hindu Marriage Act,1955. Christians are administered by Indian Divorce Act-1869 and The Indian Christian Marriage Act,1872. Muslims are administered by Personnel laws of Divorce and also the Dissolution of Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce) Act, 1986. Similarly, Parsis are administered by The Parsi Marriage & Divorce Act-1936. There is likewise a secular law called Special Marriage Act, 1954.
Divorce by Mutual Consent
Divorce by mutual consent is characterized as situations were in both spouses have mutually and cordially agreed to mutually dissolve their marriage. In such a situation, the petition for filing a divorce is jointly filed before the court if and only if both spouses have been:
• Living separately for above one year.
• Not living together.
• Mutually agreed for dissolving the marriage.
A petition for Mutual Consent Divorce could be filed under different legislations, they are:
• Section 13B of the Hindu Marriage Act, 1955 (applicable to every Hindus, Jains, Sikhs) mandates a period of separation of 1 year.
• Section 28 of the Special Marriage Act, 1954 ( applicable to every marriage between individuals belonging to different religions, castes, NRI’s, etc) mandates a period of separation of above one year.
• Section 10 A of the Indian Divorce Act for Christian Couples commands a period of separation of two years.
The documents required for Mutual Divorce
The documents required to file a divorce by mutual consent:
1. Husband’s Address proof.
2. Wife’s Address proof.
3. Details of professions and present earnings of husband and wife.
4. Certificate of Marriage.
5. Family background information.
6. Photographs of marriage between husband and wife.
7. Evidence to prove that the husband, as well as wife, have been living separately for above one year.
8. Evidence proving failed attempts of reconciliation.
9. Income tax statements.
10. Details of property and assets of the individuals.
11. Few other documents might be required, in view of the facts and circumstances of the specific case.
Mutual Divorce under Muslim Law
As per the Muslim Law, there are two classes of divorce - ‘judicial’ and extra-judicial. Mutual Divorce under Muslim Law comes under the extra-judicial category. There are two sorts of divorce by a mutual agreement known as ‘khula’ and ‘mubarat’. Under both these sorts of mutual divorce, the woman is to part with her ‘dower’ or some additional property.
‘Khula’ under Muslim Law is said to be an agreement amid the husband and wife for dissolving a union in lieu of compensation (part of her property) that is paid by the wife towards her husband. Despite the fact that this consideration is significant, the actual delivery of property is not a precondition for the legality of the divorce under ‘khula’ system. An irrevocable divorce occurs when the husband gives his consent, and the husband has no right to cancel the ‘khul’ on the ground of consideration not having been paid.
Under the ‘mubarat’ kind of mutual divorce, both the individuals should ask divorce, and in this way, the proposal for it could emanate from either wife or husband. Both these individuals must be willing to separate. When the offer is made, the other individual should accept it, and once it is accepted, the divorce becomes irrevocable.
Under the Sunnis, when the couple enters into a ‘mubarat’, every rights and commitment of the parties come to an end.
In Shias, a proper form is imposed, i.e. the word ‘mubarat’ must be followed by the word ‘talaq’ for the divorce to take place. These words must be uttered in Arabic, and the intent to end the marriage should be expressed clearly.
Mutual Divorce under Hindu Law
Section 13B of the Hindu Marriages Act, 1955 expresses that to seek divorce by mutual consent both the individuals are required to file a petition to the district court for dissolving their marriage on the grounds that they were living separately for more than one year, that they are not in a situation to stay together and that they have mutually agreed and chosen to dissolve their marriage.
Section 28 of the Special Marriages Act, 1954 in case of court marriage expresses that to seek divorce by mutual consent both individuals are required to file a petition to the district court for dissolving their marriage on the grounds that they have been living separately for more than one year, that they are not in a situation to stay together and that they have mutually agreed and chosen to dissolve their marriage.
Mutual Divorce under Christian Law
Divorce for Christians in India is given for under the Divorce Act, 1869. Section 10 A of the Act gives the condition for dissolution of marriage by mutual consent. A petition for mutual divorce could be file by both the individuals to the appropriate district court. The petition must be filed on the grounds that the individuals have been living separately for more than a year and that it is not possible for them to stay together and chosen to dissolve the marriage has been mutually agreed upon.
This petition could be withdrawn after the expiry of 6 months from the date of the presentation of the petition, but prior to a lapse of 18 months from this date.
Mutual Divorce under Parsi Law:
Provisions for marriage and divorce for Parsis in India are expressed in the Parsi Marriage and Divorce Act, 1936. Divorce by Mutual Consent is provided under Section 32B of the Act. It explains that both the husband and wife could together file for mutual divorce on the ground that they have been living separately for a period of one year or more, and it is not possible for them to stay together r. They have to state that they mutually agree that the marriage must be dissolved. However, a suit under this section could not be filed, unless one year has elapsed since the date of the marriage.
Before whom divorce petition by mutual consent is filed?
The divorce petition is in the form of an affidavit, which is to be submitted towards the family court. After the filing of the petition and recording the statement of both the individuals, the court usually adjourns the matter for a period of 6 months.
After six months the individuals have to present themselves again in the court for making a second motion affirming the mutual consent filed earlier. It is only after the second motion application that a decree of the divorce may be granted by the court.
eStartIndia is the professional tech-based online business and legal services platform which help the clients to simplify the procedures of divorce and any other legal services in India.
Get free Consultation services for any registration with Our Top-skilled Experts. Visit our website www.estartIndia.com
Author:
Leave a Comment
Previous Comments