“Divorce does not mean a failure; it is in fact a step towards self-realization and growth”
In India, just like the marriage laws, even the divorce laws are different for different religions.
○Hindu Marriage Act, 1955 covers divorce laws for Hindus (including Sikhs, Jains and Budhists).
○For Muslims, their Personal laws of Divorce, Dissolution of Marriage Act 1939 and the Muslim Women ( Protection of Rights on Divorce) Act, 1986 are applicable.
○The secular law – Special Marriage Act, 1954 governs the inter-religion marriages.
What is Mutual Divorce?
Mutual Divorce is when both the parties (husband and wife) agree mutually to separate i.e. they agree that living together is impossible and that Divorce is the best solution.
In a case where the parties decide they do not want to remain married to each other or can not live with one another they can seek divorce by mutual consent under Section 13B of the Hindu Marriage Act.
Advantages of Mutual Divorce
1.No need to give reasoning for Divorce , No washing dirty linen in Public, Your privacy is well Guarded.
2.This form of Divorce is Quick and Cost effective.
3.If all papers submitted are satisfactory the hon’ble court Grants it Without Delay.
4.Peaceful way of Obtaining Divorce.
Essentials for a Mutual Divorce
○Parties should be living separately
○Parties have not been able to live together
○They have mutually agreed that marriage should be resolved
Whether the consent can be unilaterally withdrawn?
Not all cases of divorce are irreparable and some may still have some scope of reconciliation and the parties may choose to withdraw their consent and give their marriage a second chance.
The waiting period proves to be very useful for some cases as the parties get to go for mediation which may change their mind.
The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends.
Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality.
There can be unilateral withdrawal of consent.
Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
Facts To Know before filing Mutual Consent Divorce
1.One year separation period Must before Filing The petition and two years in case of Christians.
2.The couple can Submit a Joint petition For mutual Divorce in the family Court or District Court where:
i. Where they Last Resided
ii. Where the marriage took Place
iii. Where the Wife Resides
iv. The entire Process takes 6 Months.
v. Couple can extend the period of second motion till upto 18 months
vi. This period can be Shortened to within 3 months by Filing a separate application to waive off Cooling period of Six months. (This entire Depends on the Discretionary powers of the Judge)
Conclusion
Divorce is a very serious issue in the society and must be used only as a last option, however, these days people do not think twice before getting divorced. It not only affects the two people but it splits families and the child of the separating couple has to go through serious trauma growing up with separated parents.
Divorce by mutual consent is the best way of divorce as the parties do not have to bad mouth each other in the courtroom and both parties can mutually settle on all issues and end their marriage and live peacefully.
