We understand that passing through the marital disputes and obtaining divorce can take not only financial but also emotional and social toll on you and your family. You are dealing with mental and physical stress, navigating legal complications related to alimony, child support, child custody, fear of loneliness and the list goes on. Divorce itself is complicated and it gets more complicates when it involves foreign law or parties in foreign countries. Hence to ease out the process we always encourage for Divorce by Mutual Consent. It is the simplest and easiest way of dissolving marriage.
Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent.
There are certain conditions required under section 13B of the Hindu Marriage Act:
Husband and wife have been living separately for a period of one year or more. And that both husband and wife have mutually agreed that they are unable to live together and the marriage has totally collapsed and should be dissolved.
Both Parties i.e. Husband and Wife should reach to Mutual understanding and agreement regarding terms and conditions for Divorce.
On the basis of agreed terms of mutual settlement and agreement, petition for Divorce with Mutual Consent is drafted and it is signed by both the parties. Such Mutual Consent Divorce Petition shall be filed in the Court as court procedure. Both the parties will have to appear before the court on their own or through their attorneys. The court may attempt to bring reconciliation between the spouses, however, if this is not possible, court will order for recording their statements on oath. After recording of statements, First Motion will be passed. Court gives six months’ time to parties to reconsider their decision and file second motion. Law specifically provided six months gap or waiting period between First Motion and Second Motion. Prior to 2009, compliance of six months waiting was not mandatory. But, in 2009, Supreme Court made it mandatory to comply with six month waiting period also in general terms known as ‘Cooling Period’. But, Supreme Court still has power to waive of the period of six months. Thus, Supreme Court is the only Court which has the power to dissolve the marriage in less than six months Once the six months waiting period is over, Second Motion is set up. Aforesaid steps shall be repeated. Statement of parties will be recorded again. After such recording of statement, Court will grant pass order and judgment, decree for divorce is granted. The divorce become final once the decree of divorce has been passed.
Under Hindu Marriages, such Petition is filed under section 13 B of the Hindu Marriage Act. Under Christian Marriages, section 10 A of the Indian Divorce Act. Under secular or civil marriages, section 28 of the Special Marriage Act.
Some states like Delhi allow statement of one party to be recorded through power of attorney.
Some Courts along with power of attorney also conduct video conferencing for Mutual Consent Divorce. This process is quite useful and advisable in case party or parties living outside India. Thus, for Divorce by Mutual Consent for NRI is possible without physical presence. It saves time, energy, money and provides the closure.
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Kenjay Law Offices Pvt. Ltd. (Kenjay) is founded in India and the USA by Kenny Bhatt, Esq., (Ph.D.) in Law. Kenny Bhatt holds the law practice license from Illinois USA since 2012 and from Gujarat India since 2000. She has been actively practicing in India and the USA since then. She practices General Law in India and Illinois, USA, and Immigration practice in India and all 52 States of USA.