Published on October, 29 2024
The process of divorce by mutual consent under Hindu law acts as a quick means of resolving the issues of couples who wish to separate without much legal wrangling. As provided by Section 13B of the Hindu Marriage Act, 1955, this provision compels both parties to consent to the termination of their marriage making it less complicated and faster than the comparative divorce process. The process is simplified with the assistance of skilled individuals like a divorce lawyer in Delhi enabling couples to iron out disputes over issues of alimony, child custody, and sharing of properties.
Due to the increasing societal acceptance of divorce and the rising incidences of divorce contemporary society has witnessed the emergence of a new trend of couples preferring the mutual consent divorce. This is because it is less protected and more private and eliminates the stress of a contested divorce trial. In this blog, we will provide you with an overview of how to obtain a mutual consent divorce in legal form, the sequence of events and actions as well as what should be taken into account.
Legal Provisions Governing Divorce by Mutual Consent Under Hindu Law
Article 13B of the Hindu Marriage Act 1955 Section 13B of the Hindu Marriage Act. Overview:
These provisions of the act deal with the process and proceedings involved in getting a divorce by mutual consent. The requirements are that the marriage of the husband and wife be declared suitable for mutual divorce under the Hindu Marriage Act and that the couple have been living apart for one year.
Essentials of Divorce by Mutual Consent under Hindu Law
Members must be spread geographically.
- Explanation: Here, living apart as a member does not mean that the members should belong to the same house. That is, whether they live in the same house or not, the two members in question are not married.
Inability to Coexist
- Meaning that the couple must have proven that they tried mediation
- or court but, there is no prospect of them coming back together.
Mutual Agreement to End the Marriage
- Importance: Both spouses must voluntarily agree that their marriage is irreparable.
- Role of a Divorce Lawyer in Delhi: A lawyer ensures that both parties understand their legal obligations before signing the divorce petition.
Procedure for Divorce by Mutual Consent
Step 1 – Filing of Joint Petition
- Both spouses submit a joint petition to a family court.
- The petition may be presented where the marriage was solemnized or where either spouse is currently residing.
Held Documents are:
- Marriage certificate
- Proof of residence
- Photographs of the couple
- Evidence of separation (if applicable)
Step 2 – First Motion and Waiting Period
- Court Appearance: Both spouses attend court in the procedure to prove the validity of the petition.
- Cooling-Off Period: It gives a cooling-off period of six months wherein the couple may ponder and reconcile. This period can be extended up to 18 months if required.
- Role of a Lawyer: A lawyer practising divorce in Delhi can assist in recording the issues regarding alimony, custody of the child, and maintenance during this phase.
Step 3 - Second Motion and Final Decree
- Deciding Case: The waiting time is over, and both parties express their willingness to proceed with the divorce.
- Court's Order: The court grants the final divorce decree, and the marriage is dissolved.
Is The Six Months Waiting Period Required By Law?
- Supreme Court Ruling: In Amardeep Singh v. Harveen Kaur, the Supreme Court held that the waiting period in divorce cannot be applied in cases where the parties have broken down and the marriage cannot be salvaged.
Under Which Circumstances Can It Be Waived?
- If both spouses have been staying away from each other for more than a year.
- If all the matters including but not limited to alimony and child custody have been settled.
- If need be, contact a divorce attorney in the city of Delhi to assist in the filing of a waiver request.
Can Consent Be Revoked By One Party?
- Law: Any spouse can alter the consent by withdrawing it at any time within the waiting period.
- Case Law: In the case of Hitesh Bhatnagar v. Deepa Bhatnagar, the Supreme Court held that such consent has to be valid at all times during the cause.
- Effect: Where one spouse withdraws the consent, the proceeding for the divorce is halted.
Functions of Divorce Attornies in the Process
Dealing with Divorce Issues with Professional Assistance
- Correct filing of papers: This makes sure every necessary paperwork is correctly done and filed.
- Settling Disputes: Addresses challenges of alimony, sale of matrimonial property and legal custody.
- Court Protocol: Adherence to statutory requirements and the timely performance of various acts towards the court.
The Services of a Divorce Counsel in Delhi
- Local Knowledge: Understanding how the family courts in Delhi operate.
- Accelerating the Process: Assists in a situation when the request for waiving the waiting period leads to positive results.
Difference Between Judicial Separation and Divorce by Mutual Consent
| Aspect |
Judicial Separation
|
Divorce by Mutual Consent
|
| Legal Provision
|
Section 10 of the Hindu Marriage Act
|
Section 13B of the Hindu Marriage Act
|
| Marital Status
|
Marriage remains intact
|
Marriage is legally dissolved
|
| Remarriage Rights
|
Not allowed
|
Both parties can remarry
|
| Waiting Period
|
No specific waiting period
|
Six months (can be waived)
|
Conclusion
According to Hindu law, divorce by mutual consent has to be one of the easiest and the most convenient ways of putting an end to a marriage. This is because it saves both parties from the stress that is often found in disputing divorces and that everything gets dealt with without any conflict. With the help of a divorce attorney based in Delhi, the work becomes a lot more manageable, remarriage after divorce law.
Advocate Priya Paul
Advocate Priya Paul, a proactive Delhi-based advocate, leads a skilled team. Her blog shares insights and updates on legal issues, helping readers navigate the law.
Frequently Asked Question
What will happen if one of the partners does not agree to the second motion?
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In the second motion, the divorce cannot be countered by any spouse unless both agree to it. If such an agreement is retracted by one spouse, the application will be rejected and the other spouse may have to search for opportunities for a divorce suit filed by the husband against the wife or vice versa.
In which situations will the waiting period be removed?
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In almost all circumstances, it cannot. It depends on the specifics of the situation. The period may be dispensed with only where the couple has been separated for no less than twelve months, all disputes concerning such matters as maintenance or child care have been adjudicated and the union is considered broken beyond repair.
How can a divorce lawyer in Delhi help in the process?
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Among other things, a lawyer files the required papers, conducts all negotiations, including those on property division and spousal support, and explains all the steps of the process to the individual, including when and how to file a motion to eliminate the waiting period, if necessary.
What is the significance of mediation in mutual divorce?
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Mediation services are offered to help settle issues like spousal support, parental rights, and property credits. Courts may order mediation for reconciliation or faster divorce without stirring up conflicts.
Is mutual consent divorce available for online filing in India?
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Although the divorce procedure calls for attendance in court, certain courts permit petitions for divorce to be filed through the Internet. A divorce lawyer in Delhi will help with the online filing where all documents are properly submitted and the court’s demands are satisfied.
