Process of Mutual Divorce in India

By Team Legal Helpline India, December 4, 2017

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Process of mutual divorce in India is defined under Section 13 B(1) (2) of The Hindu Marriage Act, 1955 which reads as under:


(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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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.

(2) On the motion of both the parties made earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and the averments in the petition are true, pass decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

A reading of this section makes clear that the petition for mutual divorce can be presented jointly by both the parties to the marriage i.e. the husband and the wife for the dissolution of their marriage on the grounds of mutual consent. The precondition for filing such petition is that they should be living separately since last one year before the date of filing of the petition and they have mutually agreed to get the marriage dissolved.

STEPS OF PROCESS OF MUTUAL DIVORCE IN INDIA

The process of mutual divorce in India can be initiated by filing a petition as described under Section 13 B of the Hindu Marriage Act which should contain all the contentions to satisfy the court regarding the aspect of mutual consent of the parties regarding the divorce. The petition for mutual divorce is to be signed and filed by both the parties jointly before the court. The steps involved with the filing of the process of mutual divorce in India cab be summarized in following important steps.

STEP-I   First step in the process of mutual divorce in India is the filing the   joint petition for mutual divorce containing the mandatory contents relating to the grant of divorce along with an affidavit by each party as prescribed under law.

STEP-II  The Second step for the process of mutual divorce in India mandates the appearance of both the parties before the Family Court after filing the joint petition for mutual divorce along with their counsels. The date fixed by the court  is generally within one or two days after filing of the petition for mutual divorce before the court.

STEP-III   In the next step of the process of mutual divorce in India , court scrutinizes the petition and the documents as filed by the parties . After satisfaction the court orders for the recording of the statement of the parties before the court on oath. Sometimes the court also attempts reconciliation between the parties as a last chance and in the event of failure of the reconciliation proceedings the matter is proceeded with by the court.

STEP-IV  In the next step of the process of mutual divorce in India , after recording of the statement of the parties, the court passes the order on the first motion. Once the First Motion of divorce is accepted by the court,  the parties are required to  file the second motion after the statutory period of 6 months and within the prescribed period of 18 months from the date of presenting the petition for first motion.

STEP-V After the lapse of the statutory period of six months and within the period of 18 months the parties again file the second motion following the same process and appear before the court for statement.

STEP-VI The second motion is taken up by the court and the statement of the parties is recorded.

STEP-VII-The court on the basis of the statement of the parties and on the basis of the facts of the case passes the orders and dissolves the marriage of the parties as per their prayer and a decree of divorce between the parties is ordered to be prepared.

STEP-VIII-The court grants the decree of divorce and the marriage between the parties is dissolved by the decree from the court.

IMPORTANT TIPS ON INITIATION OF THE PROCESS OF MUTUAL DIVORCE IN INDIA:

The parties should be living separately since last one year from the date of filing of the petition under the process of mutual divorce in India.

The parties should specially state that it is not possible for them to stay any more as husband and wife any more.

The parties should also clearly state that they have settled all their claims against each other.

The parties can file a settlement before the court showing the terms and conditions of the settlement alongwith the petition filed under the process of mutual divorce in India.

The proof of marriage between the parties is to be filed before the court.

The photographs of the parties is also field along with the petition.

The proof of residence of the parties is also to be filed before the court.

It is always better to engage the services of a qualified lawyer for drafting and filing the petition.

The petition for the second motion of the divorce be filed within 18 months from the date of the presenting of the petition for the first motion.

FORMAT OF DIVORCE PETITION TO BE FILED IN THE PROCESS OF MUTUAL DIVORCE IN INDIA:

BEFORE THE FAMILY COURT AT

HMA PETITION No.

IN THE MATTER OF:

(XYZ) Petitioner No.1

&

(ABC ) Petitioner No.2
PETITION UNDER SECTION 13B (1)(2) OF THE HINDU MARRIAGE ACT FOR DISSOLUTION OF MARRIAGE ON MUTUAL CONSENT.

MOST RESPECTFULLY SUBMITTED AS UNDER:-

1. That the present mutual divorce petition is being presented by the parties who are Hindus by religion and the marriage between the parties was solemnized on ———at ————-, by Hindu rites and ceremonies. A duly sworn affidavit to this effect is being filed alongwith the present petition.


2. The marriage was consummated thereafter and the parties co-habited as husband and wife at the matrimonial home i.e. ————————-. The particulars showing the details of the parties to the present petition is given hereunder:
HUSBAND

BEFORE MARRIAGE

Age Address Status

HUSBAND

AFTER MARRIAGE

Age Address Status

WIFE

BEFORE MARRIAGE

Age Address Status

AFTER MARRIAGE

Age Address Status

3. That there is no child born (give the details of the child if applicable) out of the wedlock of the parties.


4. That the parties could not adjust with each other due to temperamental differences hence the marriage between the parties has broken down irretrievably and there is no chance of reconciliation between the parties as all efforts to reconciliation have failed and parties have now decided to live separately now.


5. That the parties have settled all their matters related to Stridhan, alimony, maintenance (give details of the terms of settlement).


6. That the parties are residing separately since ______________ and there is no cohabitation between the parties since then.


7. That the present petition is not being filed in collusion.


8. That there are no other divorce proceedings pending before any other court.


9. That the matrimonial home of the parties was at ————————–hence this court has the jurisdiction to grant the decree of divorce as prayed for.


10. That there are no legal impediments in grant of the decree of divorce to the parties on the basis of mutual consent.

P R A Y E R
It is most respectfully prayed that the court may dissolve the marriage of the parties and grant a decree of divorce on the grounds of mutual consent.


Any other order which the court may deem fit and proper in the facts and circumstances of the present case be also passed in favour of the petitioners.

Petitioner No.1 Petitioner No.2

VERIFICATION:
Verified on this —————at ——————that the contents of the present petition are true and correct, nothing material has been concealed and no part of it is false. The contents of para 1 to — are based on the personal knowledge of the petitioner and the documents available and the contents of para —to — are based on the legal advice received and believed to be true. The last para is the humble prayer before the court.

Petitioner No.1 Petitioner No.2

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