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What is the procedure for Hindus and Muslims to take Divorce by Mutual Consent?

Now days, the instances are seen where both the husband and the wife are not happy in their marital relationship. Though, they want to dissolve their marriage, yet they feel uncomfortable to do so. This uneasiness may be either due to societal pressure or due to negligence of procedure relating to divorce by mutual consent. If your case is of latter, then you are at the right place.

The following article seeks to elaborate the procedure and manner of obtaining divorce by mutual consent.

What is divorce by Mutual consent?

  • Divorce by mutual consent' in simple terms means repudiation or dissolution of the marriage tie mutually i.e with the consent of both the husband and the wife.
  • Consent plays a major role in such type of divorce petitions as thus the framing of unnecessary allegations can be avoided in such cases.
  • Both Hindus and Muslims can obtain divorce through this, a judicial decree is required in case of Hindus, while no such requirement is necessary in case of Muslims as there marriage is a contract.

Divorce by mutual consent in Hindus

After the Marriage law Amendment Act, 1976, section 13[B][1] was inserted in Hindu Marriage Act, 1955. This Amendment introduced the concept of divorce by mutual consent in Hindus. Let's understand its process by answering the following questions.

Who has to file the petition?

As per section 13[b][1][i] of the Hindu Marriage Act,1955, the petition for divorce has to be presented by both the parties [ Husband and the wife] together.

On what ground the petition is filed?

The petition states that both the parties have been living separately for a period of 1 year or more and they have not been able to live amicably together and thus they mutually decide to dissolve their marriage. This is a must condition.

It is pertinent to note that the expression 'living separately' connotes not just physical separation, but it includes psychological separation i.e no intention to live as husband and wife, the same was expressed by the honourable supreme court in the case of Sureshtha Devi v. Omprakash[1].

Where to file the petition?

As per section 13[B][1] read with section 19 of the 1955 Act, the petition has to be filed at the District Court where marriage was solemnised or where the parties last resided.

When to file the petition?

As stated the petition has to state that the parties have been living separately since 1 year or more, thus the minimum requirement is 1 year of separation.
Moreover, as per section 14 of the Act, 1955, the divorce petition can not be presented within 1 year of marriage except in case of ' exceptional depravity and hardships' which depends upon the facts of the case, however, the petition for judicial separation can be filed within 1 year of marriage on any of the grounds mentioned under section 13 of the Act , 1955.

Apart from all this, it is important to know that the procedure to obtain divorce by mutual consent involve two types of motion as stated under section 13[B][2]:
  1. Motion1:

    in this motion the petition for divorce is presented before the court stating the ground of divorce after 1 year of separation.
     
  2. Motion 2:

    this motion comes into play after 6 months but before 18 months of the first motion. This time period is known as 'cooling off period', it offers the opportunity of reconciliation to the parties, in case the reconciliation occurs the divorce could be averted. In case reconciliation did not happen, the parties can come and claim divorce. After hearing both the parties and making appropriate inquiries , the court would grant divorce.
Thus, the parties are required not to cohabit during this 18 months tenure[ 1year+6 months], in order to successfully claim divorce in second motion.

Can the Cooling off period be waved off?

Yes! the cooling off period can be waved off by the courts if they find that the marriage has been irretrievably broken. The Supreme court in 2017 in the case of Amardeep Singh V. Harveen Kaur held that section 13[B][2] is directory in nature as compared to section 13[B][1] which is mandatory in nature and thus where it is found that the marriage has been irretrievably broken down then the marriage could be dissolved even before observing the cooling off period.

In the said case , the husband and the wife together by mutual consent filed a petition for divorce stating that they were living separately since 8 years. The court observed that if the reconciliation did not happen in 8 years there are hardly any possibilities that it would happen in 6 months. The court thus , waived off the cooling off period by invoking article 142 of the Constitution.

Can the divorce petition be withdrawn unilaterally?

Yes! the divorce petition can be withdrawn either unilaterally or mutually within cooling off period and even after that but before presentation of second motion as per the ruling of Supreme Court in the case of Sureshtha devi V. Omprakash[2] and Hitesh Bhatnagar V. Deepa Bhatnagar[3].

Divorce by mutual consent in Muslims
As we know, marriage in Muslims is regarded as a Contract which involves, ijab [offer] and qubul[ acceptance of offer] with consideration[ mehr].

There is a concept of Mubarat which is similar to the concept of divorce by mutual consent . In this form of divorce, the offer of Mubarat is made from the either side and if it is accepted by the other side , the irrevocable divorce is obtained mutually without any judicial intervention. Thereafter, the wife has to undergo iddat.Shia law explicitly recognise this form of divorce[talaq] .

Thus, it can be seen that , divorce by mutual consent is a tussle free and hustle free method of obtaining divorce and a new journey can be started without much tension.

End-Notes:
  1. AIR 1992 SC 1904
  2. AIR 1994 SC 1904
  3. AIR 2011 SC 1637

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