How to Obtain Divorce by Mutual Consent?

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Divorce, in legal parlance, is the dissolution of a marriage by a court of law. It marks the end of a marriage, a stage where a husband and wife are no longer bound by marital or conjugal obligations and are free to go their separate ways. There are numerous ways to end an unhappy marriage and getting a divorce by mutual consent is the most sought-after way.

Section 13B of the Hindu Marriage Act, 1956 provides for grant of divorce by mutual consent. According to Section 13B, a petition for dissolution of marriage can be filed in the District Court by both the husband and wife. The petition can claim divorce on the following grounds:

  • That the husband and wife have been living separately for one year or more;
  • That they have not been able to live together;
  • That both have mutually agreed that the marriage should be dissolved.

Once the above grounds are fulfilled, then a petition for divorce under Section 13B can be filed in the local District Court which has the jurisdiction over the matter. Very often, this will be the Family Court in all major cities. Before a petition for divorce is filed under Section 13B, both husband and wife must have been living separately for at least one year.

The Procedure in Court:

Once the divorce petition is filed, there is a mandatory six-month waiting period. Once these six months elapse, both parties must file a motion praying for grant of divorce. The time period for filing this motion is between six to eighteen months after filing the Divorce Petition.

Why a Six-Month Waiting Period?

The Supreme Court of India in the case of Suman vs Surendra Kumar, AIR 2003 Raj 155, stated that the period of 6 to 18 months provided in Section 13B is a period of interval which is intended to give time and opportunity to the couple to reflect on their decision to get a divorce. In this transitional period, the husband and wife may have second thoughts and subsequently withdraw their divorce petition. The passage of these six months is considered sufficient for an informed decision, which is then considered final.

Final Hearing:

Once the motion for divorce is moved, the Family Court will conduct a brief hearing of the matter where both the husband and the wife will be heard. In particular, the Judge will seek satisfaction on the following points:

  • That a valid marriage was solemnized between the husband and wife;
  • That neither party wants to stay in the marriage;
  • That all attempts at reconciliation have failed;

Once the hearing is complete and the Judge is satisfied that all of the above criteria have been met with, he will pass a Decree of Divorce declaring the marriage to be dissolved with effect from the date of the decree.

Conclusion:

Thus, Divorce by Mutual Consent under Section 13B represents a more direct, less cumbersome choice for ending an unhappy marriage. It is imperative that both spouses are in agreement on the terms for Divorce. There should be absolutely no element of doubt and all claims must be settled. This would entail intensive per-divorce negotiations in which both parties must not only defend their rights, but also be willing to accommodate the other person’s rights wherever necessary. Once a compromise has been reached, the process of law will run its course, delivering justice to both the parties.


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Advocate Aditya Pratap
About Advocate Aditya Pratap 45 Articles
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.