Where to file the Divorce case?
The parties are required to file for divorce in the family court of the city where both the partners lived together for the last time, i.e. their matrimonial home. It can even be presented in the court of the city/place where the marriage was solemnized.
How long does it take to get a decree of Divorce by Mutual Consent in India?
The average timeline of the entire process, from the date of filing till getting the divorce decree can be around six months to two years. However, it can take longer, depending upon the nature of the particular case. No set time can be stated as each case is different and independent of the other. Keeping that in mind, however, mutual divorce has been seen to be the least time taking as compared to other procedures of divorce.
Can Mutual Divorce decree be obtained through notary?
No, mutual divorce cannot be granted through notary in India. A valid decree of divorce can only be granted by the family court of appropriate jurisdiction.
Can a party withdraw the petition for Divorce?
During the six month period or time gap between first motion and the second motion, either of the parties can withdraw by filing an application before the court, stating that they do not intend to get a divorce through mutual consent. In such a circumstance the other party would only have one option -to file for contested divorce. A contested divorce can be filed on any of the following grounds like cruelty, desertion, voluntary sexual inter-course with another person, unsound mind, conversion of religion by other spouse, leprosy, venereal disease, a spouse having renounced the world or being missing for a period of more than 7 months.
Can a party remarry without getting a Divorce?
To remarry, getting a divorce is a pre-condition. If you remarry without getting a divorce then it is a punishable offence with 7 years imprisonment.
Is appearance of parties necessary for obtaining Divorce decree?
In most cases, parties are required to be present before the court during first and second motion. Only in rare cases, camera proceedings may be allowed where the courts are convinced that the attendance of the party in question cannot be arranged by all possible means and it is totally on the discretion of the court to allow it.
How can NRIs get a Mutual Divorce?
In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the party currently resides. It is imperative that the decree by foreign courts should not be inconclusive of section 13 of the Civil Procedure Code, 1908. Infact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit for camera proceedings.
What happens when mutual consent is obtained by force or coercion?
It is the duty of the court to examine that the consent is not viciously obtained. If the court fails to determine whether the consent was given freely or not, then such a divorce decree cannot be regarded as a decree by mutual consent. In case the consent for mutual divorce is obtained through force or coercion, the aggrieved party can file an appeal to strike down such a decree.
Is the statutory cooling-off period for six months mandatory?
No, the statutory cooling off period for six months is not mandatory. If the court deems fit, then it can waive off this cooling period. This implies that if the couple has mutually decided to dissolve their marriage, they can request the court to expedite the process and not wait for another six months.
How is the issue of maintenance tackled in case of a Mutual Divorce?
Alimony is an important aspect in matters of divorce proceedings. In cases of mutual divorce, the divorcing husband and the wife are required to agree on the sum of alimony or maintenance which will be given either by the husband to wife or wife to the husband as the case may be.
While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.
In case the parties mutually agree that there is no requirement to pay any alimony, it is not compulsory for the parties to decide the quantum to be paid. No maximum or minimum amount of alimony has been set by law, hence, it is upon the parties to agree upon a particular sum. It is generally decided as a gross sum, or a monthly amount, not exceeding the life of the receiver, giving regard to the payer’s own property and income.
While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.
In case the parties mutually agree that there is no requirement to pay any alimony, it is not compulsory for the parties to decide the quantum to be paid. No maximum or minimum amount of alimony has been set by law, hence, it is upon the parties to agree upon a particular sum. It is generally decided as a gross sum, or a monthly amount, not exceeding the life of the receiver, giving regard to the payer’s own property and income.
How is child custody and support decided in Divorce matters?
While obtaining a divorce through mutual consent, the parties are required to settle the issue of child custody. Custody of the child implies as to who the child will physically reside with. The custodial parent would be the primary caretaker and would thereby be responsible for the medical, educational and emotional needs of the child.
Both the parents are equally competent to take the custody of the children. However, in this kind of divorce, the parties need to mutually agree upon matters such as - who would have the physical custody of the child, the duration of visitation rights, the interim custody, how the child’s living and educational costs will be met, etc. The spouse can even opt for joint custody. Under this arrangement, one of the parents would be the primary caretaker and thus have the physical custody of the child, and both of them would have the legal custody of the child.
The court regards the interest and welfare of the child as paramount considerations in matters of child custody. The court is the parens patriae i.e. the ultimate guardian of the child and hence the minor child’s property/income is protected by law. Moreover, the terms of custody, access and child support can be changed in case the circumstances are altered, or in the best interest of the child.
Both the parents are equally competent to take the custody of the children. However, in this kind of divorce, the parties need to mutually agree upon matters such as - who would have the physical custody of the child, the duration of visitation rights, the interim custody, how the child’s living and educational costs will be met, etc. The spouse can even opt for joint custody. Under this arrangement, one of the parents would be the primary caretaker and thus have the physical custody of the child, and both of them would have the legal custody of the child.
The court regards the interest and welfare of the child as paramount considerations in matters of child custody. The court is the parens patriae i.e. the ultimate guardian of the child and hence the minor child’s property/income is protected by law. Moreover, the terms of custody, access and child support can be changed in case the circumstances are altered, or in the best interest of the child.
Is Divorce law different for different religions in India?
Yes, like marriage laws, divorce laws are also different for different religions. Divorce for Hindus is covered by Hindu Marriage Act, 1955. This includes Sikhs, Jains and Buddhists. Christians are governed by Indian Divorce Act, 1869. Muslims are governed by Personal laws of divorce and Dissolution of Marriage Act, 1939 and the Muslim Women ( Protection of Rights on Divorce) Act, 1986. For inter-religion marriages, there is a secular law, Special Marriage Act, 1954. The following list explains mutual divorce in different religions:
1. Mutual Divorce under Muslim Law :
Under Muslim Law, there are two categories of divorce - ‘judicial’ and extra-judicial. Mutual Divorce under Muslim Law falls under the extra-judicial category. There are two kinds of divorce by mutual agreement called ‘khula’ and ‘mubarat’. Under both these kinds of mutual divorce, the woman is to part with her ‘dower’ or some other property.
‘Khula’ under Muslim Law is said to be an agreement between the husband and wife for dissolving a union in lieu of compensation (part of her property) that is paid by the wife to her husband. Even though this consideration is important, the actual delivery of property is not a precondition for the validity of the divorce under ‘khula’ system. An irrevocable divorce takes place once the husband gives his consent, and the husband has no right to cancel the ‘khul’ on the ground of consideration not having been paid.
Under the ‘mubarat’ form of mutual divorce, both the parties must desire divorce, and thus the proposal for it can emanate from either wife or husband. Both these parties should be willing to separate. Once the offer is made, the other party must accept it, and once it is accepted, the divorce becomes irrevocable. Under the Sunnis, once the husband and wife enter into a ‘mubarat’, all the rights and obligations of the parties come to an end. In Shias, a proper form is imposed, i.e. the word ‘mubarat’ should be followed by the word ‘talaq’ for the divorce to take place. These words should be uttered in Arabic, and the intention to end the marriage should be expressed clearly.
In both ‘Khula’ and ‘Mubarat’, the wife shall go through the ‘iddat’ period and in both, the divorce is an act of the parties and no intervention by the court is required.
2. Mutual Divorce under Christian Law :
Divorce for Christians in India is provided for under the Divorce Act, 1869. Section 10 A of the Act gives the provision for dissolution of marriage by mutual consent. A petition for mutual divorce can be presented by both the parties to the appropriate district court. The petition should be presented upon the grounds that the parties have been living separately for more than a year and that it is not possible for them to cohabit together and that the decision to dissolve the marriage has been mutually agreed upon.
This petition can be withdrawn after the expiry of 6 months from the date of the presentation of the petition, but before a lapse of 18 months from this date.
3. Mutual Divorce under Parsi Law :
Provisions for marriage and divorce for Parsis in India are given in the Parsi Marriage and Divorce Act, 1936. Divorce by Mutual Consent is given under Section 32B. It states that both the husband and wife can together file for mutual divorce upon the ground that they have been living separately for a period of one year or more, and that they have not been able to live together. They have to mention that they mutually agree that the marriage should be dissolved. However, a suit under this section cannot be filed, unless one year has elapsed since the date of the marriage.
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