How to take Mutual Divorce?

  • What is divorce?

When a legally wedded couple takes a decision to live separately, either one party or both the parties want to live separately, in this case, they apply for divorce before the Hon’ble Court. It is the legal dissolution of a marriage by a Court.

  • What is mutual divorce?

When both husband and wife mutually want to take divorce. When husband and wife mutually agree that they cannot live together anymore they apply for mutual divorce.

You can understand the complete process of mutual divorce in Hindu Marriage Act, 1955 by watching this video:

The concept of mutual divorce section 13(B) was added in the Hindu Marriage Act 1955, in the year 1976.

Difference between mutual divorce and normal divorce

  1. In the case of normal divorce, one party goes to court to seek divorce. It is specifically mentioned that when one party goes to court for divorce they need a valid ground for divorce for example cruelty, desertion, etc. There are many grounds for divorce provided in section 13 of the Hindu Marriage Act 1955. And in the case of mutual divorce, no specific ground for divorce such as cruelty is required, if both the parties mutually want to live separately. For mutual divorce, there is no need for any specific reason to take divorce and both the parties have to approach the Court.
  2. In case of contested divorce, mandatory 1 year period of separation is not required. In case of mutual divorce more than one-year of separation is mandatory. The husband and wife must be residing separately for at least past 1 year.
  3. The third point is normal/contested divorce takes a long time period to be granted but on the other hand, mutual divorce is much quicker and simpler.

The grounds for divorce can be understood by watching this video:

  • Jurisdiction

The petition for mutual divorce can be filed in either of these three jurisdiction:

  1. Where both the parties got married.
  2. Where the wife is currently residing.
  3. Where both the parties lastly resided as husband and wife.

In the above mention jurisdiction, if there is a family court in that area then mutual divorce petition should be filed before the family court, and if there is no family court then mutual divorce petition will be filed before the District Judge.

  • Required documents

ID and Address proof of both the parties for example Aadhaar Card, Passport etc.

Marriage Proof (Marriage certificate, marriage card, marriage photo)

Passport size photos of both the parties

Settlement Agreement (if any)

  • Process of mutual divorce

There are two motions in mutual divorce, first motion and the second motion.

More than one year of separation is required to get a mutual divorce. After one year of separation, first motion for mutual divorce can be filed.

The time period between the first motion and second motion is minimum of 6 months and a maximum of 18 months. It is called the cooling-off period. After this period if husband and wife change their mind that they don’t want to take divorce now, then they can go on with their married life but after this cooling-off period if their decision is the same and they want to take divorce then after the cooling-off period they can file their second motion.

If your second motion is allowed then you are legally divorced.

The Supreme Court of India in a latest judgment i.e. Amardeep Singh vs Harveen Kaur on 12 September 2017, Civil Appeal No. 11158 of 2017 held that the court has discretion power to wave off the cooling-off period. This was for cases where there the chances of any of the parties changing their minds are almost nil like both the husband and wife have been living separately for years or they have multiple cases against each other.

Section 13 B of Hindu Marriage Act- Divorce by mutual consent. :

  1. Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
  1. On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]
    • The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.
    • The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
    • 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.