Mutual consent divorce is a regulatory process for the dissolution of marriage where the court observes and confirms that the consent of both the parties is without any coercion, fraud, undue influence and force. The Apex Court has given a precedent for mutual consent divorce , by allowing the discretionary powers of the court to forgo  the statutory requirement of a cooling  period of six months between the first motion and second motion in Amardeep Singh v Harveen Kaur AIR 2017 Supreme Court 4417. 

  • A report in Gitnux states that “There has been a 350% increase in divorce rates in India over the last two decades.”
  • According to statistics reported in the Times of India, “The number of mutual divorce cases filed in 2021 was 787 in the Family court, which was highest in the 5 year period till 2021”

The introduction of laissez faire principle turned Hindu marriages into a civil contract. This allowed individuals to enter into marriage with their free consent and dissolve the marriage with mutual consent.This has helped countless couples who are not able to live together as husband and wife to break their matrimonial bond in an amicable way. 

Indian Laws and Rules for Mutual Divorce

In India different personal laws govern the institution of marriage and its dissolution.

Mutual divorce or divorce by mutual consent is the term used when the legally wedded husband and wife mutually agree to dissolve their marriage.In such a case they need to jointly present a mutual divorce petition before the honorable court.

Dissolution through mutual consent is governed by the the Marriage Law (Amendment) Act, 1976 for Hindus,Parsis and Divorce (Amendment) Act, 2001, for Christians .This provision existed in the Special Marriage Act, 1954.

Divorce by mutual consent is recognised under the section 13B of Hindu Marriage Act, 1955, section 28 of Special Marriage Act, 1954, section 32B of Parsi Marriage and Divorce Act, 1988, section 10A of Indian Divorce Act and Muslim personal law. 

Muslim laws recognise divorce by mutual consent in two forms, khula and mubbarat, where “khual” means putting an end the right of the husband over his wife in exchange of something by way of an agreement and “mubbarat” means consensual divorce.

Requirements for Mutual Divorce

The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 need a

petition for divorce by mutual consent signed by both the parties to be presented to the district court after a minimum of one year of solemnization of marriage. Irretrievable breakdown of marriage or incompatibility between the spouses can be the reason for mutual consent without any fault shown on either of the parties. 

The basic requirements for the presentation of petition by mutual consent are:

i. Existence of a valid marriage under the applicable law.

ii The husband and wife have been living apart for a period of one year or more.

iii. Parties to dissolution are not able to live together.

vii. The parties have mutually agreed to dissolve the marriage.

This is the case even when both parties have been living separately, unable to live together, and have mutually agreed that the marriage should be dissolved. Not only the agreement to dissolve the marriage but also the agreement on sharing assets & liabilities, payment of maintenance & alimony, child support, custody & visitaion rights and such other interdependable responsibilities is required before approaching the court. 

This is done to ensure that the decision is not perfunctory and impulsive. A period of 6-18 months was provided for the parties to reflect on their decision to dissolve the marriage. 

Landmark Judgments 

Waiver of waiting period in mutual divorce

There have been certain  landmark decisions by the Supreme court  regarding waiting periods for mutual divorces. Supreme Court says it can grant divorce using special powers and 6-month waiting period can be waived. The Supreme Court held that it could dissolve marriages on the ground of “irretrievable breakdown of marriage” invoking special powers under Article 142.

Punitive Action for Misuse of  Laws

In some cases there might be a possibility of misusing the mutual divorce laws. In such a  case, the Madhya Pradesh High Court has imposed Rs 1 Lakh cost on a litigant wife for misusing the process of court by continuing prosecution against the husband and his family even after reaching a settlement and obtaining a decree of divorce by mutual consent.

Mutual Divorce within one year of Marriage

In one of the cases the Karnataka high court waived the one-year cooling-off period specified under section 28 of the Special Marriage Act, 1954. The court granted relief to the couple who wanted to part ways by mutual consent so as to concentrate on their careers.

Mutual Divorce without Form required under Section 13B

In another landmark case the Delhi court granted mutual divorce in a contested case. In the ruling , the Court under Section 10 of the Family Court which is a Special Legislation,did away with the form required under Section 13B of the Hindu marriage act for dissolution of marriage , as the parties were living separately for more than a year, were not able to live together,  were not willing to live together, and there was a consent in the form of separate prayer for dissolution of their marriage (albeit for the fault of other).

The laws governing divorces and mutual divorces have been laid down keeping in mind certain mandatory requirements that are aimed at ensuring that the marriage doesn’t end due to frivolous reasons and impulses from the parties involved. The Indian rules and laws governing mutual divorces are made to ensure that the right decision is delivered for the welfare of the parties involved. Having said that, times are changing and so are the perspectives. The landmark judgements have shown a shift in perspectives. However, the role of an expert mutual divorce lawyer remains crucial. With the aid of an experienced legal expert by your side you stay strong with your appeal in the court of law.

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