“The mutual breaking of the sacramental bond”

Marriage as we all know is one of the most sacramental and religious bonds between the two persons to live and reside together. Sometimes, such bond or togetherness comes out to be a failure in the lives of both parties. The last resort that they use is Divorce. Divorce in many religions has been interpreted and guided by various provisions and statutes.

Hinduism is governed by the Hindu Marriage Act, 1955, which includes all the concerns related to marriage and even related to divorce.

The area of the Islamic religion is formed as well governed by the different personal laws along with the dissolution of Marriage Act established in the year 1939.

On the Other hand, Christians are governed by their own Indian Christian Marriage Act, 1872 in consonance with the Indian Divorce Act, 1869.

Through such provisions, divorce is grouped under two heads i.e. The Divorce through Mutual Consent and on the other side of the table, the Contested Divorce.

“Those who divorce aren’t necessarily the most unhappy, just those neatly able to believe their misery is caused by one other person.” – Alain De Botton

Section 13B under the Hindu Marriage Act highlights the slate of Divorce through Mutual Consent. The section establishes the time period i.e. a total of 18 months necessary for the grant of divorce or for acceptance/ rejection of the petition related to mutual divorce. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law, there is no minimum or maximum limit of maintenance. It could be any figure or no figure. The next important consideration is Child Custody. This can also be worked out effectively between the parties.

The Process:-

  • The clashes between the husband and wives are sometimes such heated that a wrong turn comes up to open the door for divorce. When such clashes have a mutual walk for Divorce, they file a petition before the family court stating the main reason for such a decision.
  • The marriage should be solemnized at least 1 year before filing such a petition and the petition should be mutually signed and affixed by both parties.
  • The court may attempt to reconcile the differences between the spouses, however, if this is not possible, the matter proceeds further.
  • Every statement or process should be recorded on the oath before the family court.
  • At least 6 months is granted as a period of reconciliation for the husband and wife. A maximum of 18 months is granted for the same.
  • Once the exhaustion period is fulfilled and then the couple files for the second phase of motion related to the divorce.
  • If the court is satisfied after hearing the parties that the contents in the petition are true and that there cannot be any possibility of reconciliation and cohabitation and the issues pertaining to alimony, custody of children, properties, etc are settled, Court can pass a decree of divorce declaring the marriage to be dissolved.

Mutual Divorce is a legal process of separation, when both the husband and wife want to separate with their own will after marriage, is called Divorce with Mutual Consent. Both husband and wife can apply for the divorce by mutual consent.

The Hon’ble Supreme in one of the baseline cases explains that the courts can grant the divorce after waiving of six months’ waiting period on being satisfied that the “waiting period will only prolong their agony” and that all efforts of conciliation have been futile. The courts, waiving of the cooling-off period will also consider whether the estranged couple has settled all differences relating to alimony, custody of children, etc.

Mutual divorce is one of the rarest types of divorce that a couple can come up to in the span of their marriage. Even though the reconciliation period is an important area for breaking the idea of divorce but such a period just increases the demand for divorcing as early as possible.

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