In India, just like the marriage laws, even the divorce laws are different
for different religions. Hindu Marriage Act, 1955 covers Divorce laws for Hindus
(including Sikhs, Jains and Budhists). For Muslims, their Personal laws of
Divorce, Dissolution of Marriage Act 1939 and the Muslim Women ( Protection
of Rights on Divorce) Act, 1986 are applicable. The secular law - Special
Marriage Act, 1954 governs the inter-religion marriages.
Mutual Divorce is when both the parties (husband and wife) agree mutually to
separate i.e. they agree that living together is impossible and that Divorce is
the best solution. This article explains mutual divorce under different laws for
different religions in India.
- Mutual Divorce under Hindu Laws:
Mutual Divorce for Hindus is governed by Section 13B of the Hindu Marriage Act
1955. Under this Section, there are several requirements that need to be
complied with to file for a Mutual Divorce:
The parties should have been living separately for a minimum period of one
No reconciliation or adjustment is possible between the parties and they have
failed to live together.
The parties have consented to the agreement of dissolution of marriage.
The parties can withdraw the petition to divorce even at the instance of one
party. This can be done within a period of six months from the date of the
presentation of the petition for mutual divorce.
The divorce case can be filed in the appropriate family court. The procedure
begins with the filing of a joint petition signed by both the parties. The
petition must contain a statement by both the parties that due to differences
that cannot be fixed, they can no longer stay together and thereby seek divorce.
Both the parties are required to appear in the family court. After the petition
is scrutinised, the statements of the parties will be recorded.
There are two
motions in mutual divorce under Hindu law. After the statements are recorded,
first motion order is passed by the court after which a 6 month period is given
to the parties where the parties shall file the second motion. This is required
to be filed within 18 months from the date of the presentation of the petition
for the first motion. Either party can withdraw their consent at any time before
the passing of the decree. Once the Court is satisfied, that the differences are
irreconcilable, and that divorce is the best option for both parties, it will
pass a decree of divorce. This is when the divorce becomes final.
- Mutual Divorce under Muslim Law:
There are two categories of divorce under Muslim law - judicial and
extra-judicial. Mutual Divorce for Muslims falls under the extra-judicial
category. It is based on the belief that since divorce is an act of the
parties, the court does not need to intervene. Khula and Mubarat are the two
kinds of mutual divorce/agreement.
Khula: This kind of mutual divorce is said to be an agreement between the
spouses (husband and wife), to dissolve the union in lieu of a part of the
womans property (as compensation) to the husband. Actual delivery is not
mandatory for the validity of the divorce even though consideration is an
important aspect of the Khula system. Once the husband gives his consent, an
irrevocable divorce takes place and the husband cannot cancel the said khul if
the consideration has not been paid.
Mubarat: Under this kind of divorce, it is important that both the husband and
the wife must desire divorce, and the proposal for divorce can arise from either
side. Once such offer is made, the other side should accept it. Once accepted,
the divorce becomes irrevocable.
There are some variations for Sunnis and Shias
under this form of divorce. For Sunnis, once the parties enter into a mubarat
the rights and obligations of the parties are put to an end. For Shias, there
needs to be a proper form, i.e. the word Mubarat is required to be followed
the word Talaq for the divorce to actualise. These words must be said in
Arabic. Moreover, the intention to dissolve the marriage shall be expressed in
- Mutual Divorce under Christian Law
Divorce Act 1869 governs divorce for Christians in India. Dissolution of
marriage by way of mutual consent has been given under Section 10A of the Act.
The petition for mutual divorce can be filed by both the parties in the
appropriate District Court.
The petition should contain the grounds:
That the parties have been living separately for more than a year
That it is not possible for them to cohabit together
That the decision to dissolve the marriage is a mutual decision of both the
The petition can be withdrawn after 6 months from the date of presentation of
the mutual divorce petition, but before a lapse of 18 months from such date.
- Mutual Divorce under Parsi Law:
Divorce for Parsis is governed by the Parsi Marriage and Divorce Act, 1936.
Section 32B of the said Act lays down the rules for mutual divorce. There are
certain reconditions that are required to be fulfilled in order to be able to
get a mutual divorce decree from the Court:
It is mandatory to mention in the petition the ground that they have been living
separately for a period of one year or more
It is also important to mention that they have not been able to live together,
The petition should state that they have mutually agreed that their marriage
needs to be dissolved
A petition/suit for mutual divorce can only be filed after the lapse of one year
since the date of their marriage
Once the Court is satisfied after its inquiry, that the marriage had been
solemnized under the Parsi Marriage and Divorce Act, that the facts mentioned in
the petition are true and the consent of both the parties is present for the
mutual divorce without any force or fraud, it would pass a decree of mutual
- To File Mutual Consent Divorce in Delhi and NCR
Contact Adv.Tapan Choudhury at Ph no: 9650499965 (Available
- To File Mutual Consent Divorce in Pune
Contact NirDita Law Firm at Ph no: 8851978611 (Available