Simplified Rules Regarding Mutual Divorce in India

Narendra Kumar

17 Jun, 2019

Divorce is a legal resort to get rid of a dead and collapsed marriage. Divorce can be availed either by mutual consent of the parties or by instituting the case by one party on other part followed by interim maintenance, final alimony, and divorce, comparatively a lengthy process when compared to mutual divorce.

Mutual Divorce can be defined as the process defined pursuant to section 13 B of the Hindu Marriage Act 1972, whereby legally a marriage can be put to an end and that too with the advantage of opting to the simplest mode, saving time, avoiding the hassle of visiting court on every hearing.

Let us get started with the latest case posted in Times of India:

Whereby the husband paid the wife the maintenance money of Rs 24,600/-, all in Rs 1/- or Rs 2/- coin. The wife further complained that has been done to her with the mere intention of harassment, to which the defense lawyer said the denomination of payment of money is nowhere mentioned in the law.

The matter is in the court, but what could be the intention of husband although he is not legally wrong? And how should the wife perceive this? Most importantly what will be the take of court on this?

There is n number of such bitter tastes in the process other then mutual divorce also it is very time-consuming. On another hand, the mutual divorce can be completed within 6-7 months of time period.

What Procedure is followed for Mutual Divorce in India?

1. Pre-filling preparation: To draw a consensus between the divorcing husband wife to opt for mutual divorce.
2. Application: Once parties to divorce mutually agree to take the recourse in action for divorce is by mutual divorce pursuant to section 13 B of the Hindu Marriage Act 1972, file an application also known as first motion before honorable court (Family court), putting up parties intention to separate through Mutual divorce as the marriage of the parties has totally collapsed and is dead now.
3. Acceptance of Case: The Honorable court will inspect the case on the following ground and shall accept it if it fulfills the basic following legal requirement:

• Husband-wife should have spent at least a year with each other before moving a petition before the honorable However, there are certain exceptions to the requirement, whereby is not possible for the parties to live together.
• Parties are taking the recourse, without any undue influence, coercion or such other pressure.
• Ground of divorce qualifies to get divorce decree.
• Place of filing the case is in accordance with the law. As per law, the case of mutual divorce can be filled in any one of the following cases:
  1. At the place where marriage has been solemnized.
  2. At the place where both husband and wife last resided together.
  3. Or at the place where the wife is residing at the time of filing of the Petition before the honorable court.
  4. 4. Cooling period/Waiver: On acceptance of the case 6 months cooling period is provided also called reconciliation time. This time is provided with the intention of allowing parties to rethink on their decision of divorce. However, this period can be waived off to an extent to 1 month to 15 days, on the discretion of the court, in cases where the parties to divorce seek for such waiver.

The court may or may not waive off this period, it is only on the discretion of the court, however in cases where the court is convinced about the need of such waiver. It is allowed in cases wherein say the husband and wife are already staying apart from each other for more than 6 months, or where the court has such other reasonable grounds to apprehend that the marriage has already collapsed and the divorce decree is just a legalization of such dead marriage.

5. Decree: Thereafter the court will issue the decree by mutual divorce under section 13 B of the Hindu Marriage act 1972 to dissolve the marriage by granting the decree of divorce and thereafter the marriage shall stand dissolved. The Divorce certificate is issued to both the parties.

 Practical Issue of Mutual Divorce in India

The divorcing impatient parties do not even want to take recourse of mutual divorce which could be completed within 6-7 months, the divorcing parties get themselves divorced on swearing through Rs 100/- (or as per case) stamp paper and getting it notarized. Such way of divorcing has no legal sanction in the eye of law. The divorcing parties are required to take the formal decree from the court.

Now where you will get stuck, if you opt for such means of divorce, you may get stuck at the time of applying VISA/ passport, or remarriage etc. And anyways such manner of divorcing is not correct and your status is not changed from married to divorce until you apply for divorce decree in the court of law.