What are the Legal Steps to file for a Mutual Divorce in India?

Let’s start by first explaining what mutual divorce is. It is a situation where both the husband and wife agree mutually to conclude and separate their ways in a peaceful manner. This way of getting a divorce is slowly and gradually getting recognition and is on the rise in India.

To be eligible for the same, both parties must consent to the divorce, and this consent must be voluntarily given by both partners without any force, fraud, misrepresentation, etc. Both parties must give a mandate that the marriage is broken down beyond repair and that there is no scope for reunion. The marriage must have been sustained for a period, which is generally one year or above. And lastly, both spouses must have lived separately for a certain duration, generally for a minimum of one year as well.

This type of divorce is highly advantageous to both spouses because of the faster resolution and fewer emotional and financial burdens, and it even helps in protecting the dignity and the privacy of both parties involved.

Procedure to file for mutual divorce in India:

Petition Filing:

Both spouses must have filed and signed a mutual divorce petition that must include all the information about the reasons stating why the marriage is getting dissolved mutually. Along with that, it also states how the property is to be divided upon divorce, and in case of children, it even contains the details about the custody of the child. For filing a mutual divorce petition, consult with well-versed lawyers. For more information, access the “contact us” section on our website.

The petition can be filed at many places, such as the place where the marriage took place, the place where the couple is living currently, or where the wife resides. Always remember that it must include the information such as the names and details of both parties, date and the place of marriage, the reasons for seeking a divorce, and details about any prior agreements in terms of alimony, custody, property division, etc.

This petition is ultimately sent to the family court for their decision on the same.

Waiting Period:

When the mutual divorce petition is filed successfully, then comes the stage of the waiting period. This is a mandatory stage of about 6 months, which is generally given as a chance to the couple to somehow work things out and sustain the marriage.

Court Proceedings:

1. First Motion:

After the six-month period has ended, and if the couple still wishes to file for divorce, the same is allowed, and both partners have to appear before the family court in the first motion. At this stage, the court will work on the petition and will examine things like the content of the petition, the reality of mutual consent, and whether the terms of the agreement that include information about the alimony, custody, etc., are fair or not. At this stage, the court may even reunite the parties by offering them counselling sessions or asking them whether the couple is sure about the separation, etc.

Once the court has duly read and understood the petition, a cooling-off period of a minimum of six months and a maximum of eighteen months is granted, again with the intent to try to make things work out between the partners. And this cooling-off period is not mandatory but directory in nature, as per the Hon’ble Supreme Court in the case of Amardeep Singh vs. Havneet Kaur. Thus, the court has the power to waive the same if separation is already over one year, or if all the issues are settled and if the court is sure that no possibility of reunion exists. If at this stage, things somehow work out between them, either the partner is free to withdraw the petition, and the marriage continues.

2. Second Motion/Final Hearing:

If either of the partners has still not withdrawn the petition at the previous stage, both partners have to appear in the court again at the second motion. This time, finally, if they again consent to their intent to move forward with the divorce, the court finally grants a divorce decree that ensures and confirms that both partners are now legally divorced. A copy of this decree is presented to both the husband and the wife.

Thus, the following issues are settled in a mutual divorce petition:

• Maintenance/Alimony:

  The same can be waived depending on the nature of the divorce or can be agreed upon. And the amount, if agreed, is also specified to be paid in installments or as a lump sum.

• Child Custody:

  The question about sole, joint, or shared custody of the child is decided mutually, where the court always considers the best interests of the child.

• Division of assets and property:

  Details about the division of movable and immovable property are decided in the petition, and along with that, the questions related to the bank accounts, jewelry, etc., are also answered.

Legal provisions governing mutual divorce in India:

Mutual divorce is legally allowed in India for all religions, but the specific law that is going to be applied in case of such divorce will depend on the religion of the partners or the type of marriage. For Hindus, including Sikhs, Jains, and Buddhists, mutual divorce is allowed under the Hindu Marriage Act. For Christian couples, it is allowed under the Indian Divorce Act, while Parsis follow the Parsi Marriage and Divorce Act. Muslim couples can opt for mutual divorce through a process called Mubarat, which is accepted under Muslim personal law. If the couple belongs to different religions or has married under the Special Marriage Act, they can also apply for mutual divorce under that law. While the names of the laws may differ, the main idea of all these laws is the same, ie, both partners must willingly agree to the divorce, and they must have lived separately for some time (usually at least one year) before applying.

Thus, we can conclude that, in India, in the case of divorce petitions, the provisions are inclined more towards sustaining a marriage than to dissolving it. The courts and legal provisions grant a lot of time to try and make things work out between the partners. Only if all the stages have passed, and if the partners still want to go forward with the divorce, the court grants the same as a decree and concludes the divorce.