The concept of mutual divorce was introduced through the Amendment of 1976 in the Hindu Marriage Act, 1955. Mutual Divorce is a legal process that helps both the spouses to end their marriage without any dispute. In contrast to the contested divorces which includes disagreements over affairs like alimony, property division, custody, etc. Mutual Divorce needs both the parties to be in agreement about the terms of separation. Further, mutual Divorce is a comparatively easier way to legally dissolve a marriage. In India, it is governed by various personal and customary laws, and it applies to consenting adults who mutually decide to part ways.
The Section 13(B) of the law allows couples who have been separated for at least a year and see no possibility of reconciliation to mutually file for divorce. The court rulings have clarified that while physical separation is required,living under the same roof without any marital relationship is sufficient. Furthermore, once a joint divorce petition is filed, neither party can withdraw it without the other’s consent.
In the case of Sureshta Devi v Om Prakash (1992), the Hon’ble Supreme Court ruled that the parties could live under the same roof but should not have any relationship between husband and wife between them.
The mutual divorce process in India involves several steps, including filing a petition, attending court hearings, and obtaining a decree:
File a petition: The couple seeking a divorce submits a divorce petition to the court, detailing the grounds for dissolving the marriage.
Appear in court: Both spouses appear in court to record their statements.
Court examination: The court reviews the petition and supporting documents and may attempt reconciliation.
First motion order: The court issues an order based on the first motion.
Cooling-off period: The court provides a six-month cooling-off period for the couple to reconsider the decision.
File a second motion: The second motion is filed within 18 months after the first motion.
Decree of divorce: The court grants the final decree of divorce.
Under Section 28 of the Special Marriage Act, 1954, mutual divorce is a provision that allows spouses to dissolve their marriage cordially. To file for mutual divorce, both parties must have lived separately for at least one year and agree that the marriage has irretrievably broken down.
A joint petition is submitted by the couple to the district court, followed by the recording of statements. Further, the court provides a six-month cooling-off period for reconsideration. After this, if both parties confirm their intent. After confirmation a second motion is filed, and the court grants a divorce decree, legally ending the marriage.
In Islamic Law, mutual divorce is called Mubara’at. It is a way to end the marriage and the obligations related to it. For Mubara’at, it is important for the husband and the wife to agree to mutual divorce, as the term Mubara’at itself means “freeing one another mutually”.
The husband or wife can make the offer to divorce, and the other spouse must accept.
After this, there is an Idat period, which is a waiting period that must be observed before the divorce is approved. After this cooling-off period, the divorce is granted; once the divorce is accepted, it is final and cannot be revoked.
The court can waive the six-month cooling periods for mutual divorce in exceptional circumstances. Further, the Supreme Court ruled that the cooling-off period is not mandatory but conditional.
Conditions for waiving the cooling-off period:
The couple has not been living together for 18 months or more.
All efforts for mediation and efforts have failed.
The couple has settled all disagreements related to child custody and alimony.
There is no possibility for cohabitation.
The Supreme Court believes that in such situations, this cooling period will just add to the couple’s suffering. Therefore, the apex court can use its power under Article 142 of the Indian Constitution to waive this cooling-off period.
If you need more clarity on mutual divorce process, explore these FAQs to find your answers. We are here for you
Mutual Divorces usually take around 6-18 months to finalize. This time period also includes the cooling-off period that is mandated by law.
To be eligible for a mutual divorce, it is important for both the spouses must have lived separately for a minimum of one year. Apart from this, they must agree on the terms of the divorce, including property division, child custody, and alimony.
Yes, a cooling period of at least six months is compulsory in India. This period allows the couples to reconsider the marriage and give it a chance. But in special circumstances it can be waived off.
Usually, there are no disputes in mutual divorce. However, if any disputes arise over the assets or custody, the divorce may become contested.
No, alimony is not mandatory; it usually depends on the agreement between the spouses and the financial circumstances of both parties.
Mutual Divorce in India is governed by various personal and customary laws. Some of them are: The Hindu Marriage Act, 1955 (Section 13B) The Special Marriage Act, 1954 (Section 28) In Islamic law, Mubara'at means "freeing one another mutually."
The documents required for mutual divorce: Marriage certificate Address proof of both spouses Photographs of the couple Income statements and property details Joint statement outlining the agreement on the divorce terms.