DIVORCE BY MUTUAL CONSENT

DIVORCE BY MUTUAL CONSENT

Introduction:- The provision relating divorce by mutual consent has been added by the Marriage Laws (Amendment) Act, 1976. It provides for divorce by mutual consent of both the parties to the marriage. The provision has been given a retrospective effect so as to make it applicable to marriages whether solemnised before or after the the commencement of the Marriage Laws (Amendment) Act, 1976 such a petition is required to be moved jointly by the parties to marriage on the ground that they have been living separately for a period of one year or more and they have not been able to live together and also that they have agreed that the marriage been dissolved with effect from the date of the decree.

Section 13B:- (1) Subject to the provision 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 marriage together, whether such marriage was solemenised 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 have mutually agreed that the marriage should be dissolved. (2) 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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.

Section 13B(2) no doubt cautions the Courts of its duty to fight the last ditch battle to save the marriage, but when the court is fully satisfied on the basis of the proved facts, that in the interest of justice, of the society and the individuals, marriage tie should be put to an end immediately. section 13B(2) does not impose any fetter on the powers of the Court to grant instant decree of divorce. Therefore, the time fixed by section 13B(2) does not apply to Appellate Court.

Ingredients:- The requirements for seeking divorce by mutual consent are: (a) Petition for divorce has to be presented to the family court of the district by both the parties to a marriage supported by affidavits of both the parties. (b) The parties should have been living separately for a period of one year or more. (c) The parties could not adjust with each other and had not been able to live together. (d) There should be mutual request by both the parties to a marriage to dissolve the marriage.

After the petition is presented, the parties have to wait for a minimum period for six months after which they have to move the court once again under sub-section (2) of section 13B. If the parties do not move the court in the matter after six moths and before eighteen months from the date of presenting the petition, the petition for mutual divorce would lapse. Either party can withdraw the petition during this period.

NOTE:- They have consented to divorce not under any force or fraud or under any strong influence. The court should specifically take into consideration that the wife’s consent has not been taken by force or by influencing her. The responsibility of the court increases in those cases where the wife is found to be illiterate.

Are there different laws of divorce for different religion in India?

There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.

NOTE:- In a recent judgement by Punjab & Haryana High Court 6 months of waiting period can be waived off.

Need a Divorce Lawyer? – You can hire a Legal Litigator’s Divorce Lawyer for your assistance or court proceedings.

What we do- Client (both parties for mutual divorce) meeting, Drafting & preparing of documentation & petition, fillings of petition, court appearance.

For any assistance please contact us