What is Mutual Divorce?
When both parties to the marriage want to end the marriage and reach an agreement to this effect and, upon satisfying specific other legal requirements, mutually present a petition for divorce in a court having territorial jurisdiction, it is called Divorce by Mutual Consent and is also colloquially called Mutual Divorce.
Hindu Marriage Act The Special Marriage Act allow two parties to the marriage to end their marriage by way of mutual consent. The said provision, similarly worded in both acts, says –
A petition for dissolution of marriage by a decree of divorce by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1974 on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months after the said date if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are factual, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
The advantage of Mutual Consent Divorce
When it is clear that two people cannot remain in the marriage relationship due to temperamental or other differences, Divorce by Mutual Consent or Mutual Consent Divorce saves time, money, and acrimony between the parties. The parties can themselves agree on how to divide the assets and liabilities as well as the roles and responsibilities towards children, if any. A Divorce without much acrimony can also mean that parties can continue as friends rather than sworn enemies.
Necessary conditions for Mutual Consent Divorce
Thus, a petition for dissolution of marriage by way of mutual consent should contain the following points:
- That the parties are living separately for a period minimum ONE year
- That they have not been able to live together
- That they have mutually agreed to dissolve their marriage
People sometimes ask whether “living together” means living in separate adobes. SC has clarified in Sureshta Devi vs Om Prakash AIR 1992 SC 1904, (1991) 2 SCC 25 that the parties don’t need to live under separate roofs. They may live in the same house but not as husband and wife. Still, it is a challenging task to convince courts about the same. Such a decree, once obtained, can be challenged only on the grounds of fraud, undue influence or coercion.
Mutual consent is not collusive. The section is so worded that the agreement to obtain mutual consent divorce which can detail many aspects like Custody of children, alimony, maintenance, the fate of any other pending litigation like Section 498a IPC (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) or Domestic Violence Act is not said to be collusive. Collusion for S 23 of the Hindu Marriage Act and the corresponding provision of the Special Marriage Act means conspiracy to do any illegal act. If all agreements are said to be a conspiracy, then the purpose of this section would be defeated.
Mandatory periods Divorce by Mutual Consent
The legislature envisaged two mandatory periods in Divorce by Mutual Consent
- Parties should be living separately for ONE Year:
- There should be a waiting period of SIX Months between both motions.
A one-year period of separation is mandatory before filing the Petition for Divorce on the grounds of Mutual Consent. However, in extremely rare cases, courts like the Uttranchal High Court and Delhi High Court have allowed the waiver of the mandatory period, but that too when the marriage was pretty short. As a practice, the courts won’t allow the waiver of this mandatory one-year separation.
Six months waiting period is mandatory
Until recently, the courts were nearly unanimous that A six-month waiting period is mandatory and can not be waived. However, courts across the country were waiving off the statutory waiting period in the interest of justice. Supreme Court ended this practice in Anil Kumar Jain vs Maya Jain (2009) 10 SCC 415 and said only SC can waive this mandatory period in the interest of justice. In the latest judgment, i.e. Amardeep Sing vs Harveen Kaur, Apex Court noted that the waiting period between the first motion, i.e. 13B(1) and the second motion, i.e. 13(B)2, is a directory and not mandatory and is created to see the feasibility of reuniting between the parties. The waiting period can be waived off at the court’s discretion if they have been separated for long periods or are in an abusive relationship/ litigation for a period longer than mentioned in 13B(2). Thus, they gave the following points for consideration by courts before waiving the cooling-off period of Six Months:
- How long parties have been married?
- How long litigation is pending?
- How long they have been staying apart?
- Are there any other proceedings between the parties?
- Have the parties attended mediation/conciliation?
- Have the parties arrived at a genuine settlement which takes care of alimony, custody of children or any other pending issues between the parties?
Based on these the courts, if satisfied of below four conditions can waive of the cooling off period:
- the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
- all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
- the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
- the waiting period will only prolong their agony.
A point to be noted is that despite waiving second mandatory period of 6 months between first and second motion the Apex Court in all its wisdom has still kept a waiting period of ONE WEEK between First Motion and Second Motion to explore the possibilities of reconciliation between the parties.
FAQ about Mutual Consent Divorce
Mutual Consent Divorce can be filed in Family Court and if Family Court is not established then District Court having territorial jurisdiction. The territorial jurisdiction is defined in Section 19 of Hindu Marriage Act and Section 31 of the Special Marriage Act. Normally following places would have jurisdiction:
- Place where marriage was solemnized.
- Place where the parties to the marriage last resided together.
- Place where one of the parties is residing.
Except the divorce petition, no lengthy documentation is required for Mutual Consent Divorce, still courts insist on following:
- Proof of Marriage
- Proof of Identity and Address
Yes, different laws apply to varying religions in India. But most have some form of mutual divorce, which is possible. Section 13B of the Hindu Marriage Act, Section 28 of the Special Marriage Act, Mubaraat in Muslim Marriages, and the Indian Divorce Act 1869 (With Amendments in 2001) all have provisions for the same.
This question is asked often. However, an advocate’s fee is a matter of their discretion. Typically, an advocate charges as per his standing in the court. Still, some websites claim rates of around 25,000/- for the same. I would not hazard a guess for the same, but it all depends on what kind of complexities one has in their case. Small savings in such matters can have long-term impacts.
Yes, either of the parties to the Mutual Consent Divorce petition can withdraw from the same before passing the decree of divorce. The consent of both parties is a must at the time of the second motion, and any party can withdraw the consent before filing the second motion. However, courts have come down heavily on parties that have used the first motion to take some advantage, like money.
Mutual divorce is only possible when all conditions of marriage are finalized. So, maintenance and alimony questions should be decided by the parties themselves.
NRI can file Mutual Consent Divorce through Power of Attorney. According to the Supreme Court’s decision, the parents and siblings can hold power of attorney.
As explained before, unless all conditions of marriage and issues related to it are finalized, the court will not grant a mutual divorce. So the issues related to child custody and visitation should be decided between the parties to the marriage beforehand.
Since a mutual divorce is a negotiated settlement, it is decided between the parties. The mediator/judge has no or minimal say in such a negotiated settlement. However, once the amount of alimony and other things are decided and documented, the party resiling would have to face adverse consequences.
As part of the mutual agreement and statement made under oath to the court during the first motion, both parties agree to withdraw their civil cases and help the other party quash the proceedings in criminal matters. In Delhi, after the divorce decree is granted, a Quash Petition for the criminal case must be filed separately at the High Court.
22 Comments
Is settlement agreement through mediation in family court is legal and trustworthy?
Yes, the settlement agreement carries weightage.
This article on mutual consent divorce is especially insightful and well-presented. Shonee Kapoor presents a clear and complete overview of the felony process, highlighting the indispensable steps and concerns involved. The article’s hassle-free language makes it handy for readers to apprehend the complexities of mutual consent divorce.
Thank you for the appreciation.
Once the decree is received, can the lady reopen the case to renegotiate the alimony and the child custody?
And also claim that the promised settlement didn’t go as planned?
Mutual Consent Divorce can be challenged only on a limited ground of fraud and coercion. If the amount agreed and mentioned under Settlement agreement is paid, then she can not challenge it.
Everywhere you mentioned “it all depends on how agreement was drafted” so mostly in family matters husband get packages 125, interim, sec-9, HMA, DV, 498a. They have kid or no kid. So do we have draft with us that may help all in common situation ? as in family matters none is criminal it’s situation mostly that led all these cases.
All agreements has to be based on merits of individual cases. You may contact me through contact me page
I have filed divorce under 13a with grounds of adultery, cruelty with two corespondent (adultery). My wife and one another adulter stage for there reply has been closed as they failed to file there till two years. I am having one daughter of 7years and in custody of my wife and I have filed child custody which is yet to start after 4 months. My wife has filed DV and 498 a on me and my other family members and relatives before two years DV Is on cross stage of petitioner and 498a is yet to start. Now at present wife is ready for divorce but don’t want to give my child custody. Now if I file mutual consent divorce than still I have to wait for six month? As I don’t trust my wife that she can turn around during second motion.
Yes, she can turn back.
So you have to draft your petition really well.
It is submitted that the 2nd Petitioner undertakes to withdraw XYZ filed in the Court of the II Additional Metropolitan Magistrate Traffic Court, Bangalore
and Cr: NO XYZ in the complaint filed before the Station House officer, XYZ police statation and end the dispute in an amicable manner.
The above term in MCD petition is enough for 498a quash at HC unilaterally , if wife does not appear for quashing?.
You said only supreme court has the power to squash 6 months period…is there any way that we can go to supreme court directly for the wave off. Our case is presently in family court….we tried mediation… She said that she wants everything on the first motion
Yes, you can approach SC along with the lady. There have to reasonable grounds for SC to provide this extraordinary relief, which will depend on the facts of your case
Thanks Sirji..
Can HC change mutual consent divorce terms order for visitation of child?
Yes, child custody orders are always interlocutory in nature and in the best interest of child can always be reopened.
Shoneeji, In my case we have a settlement agreement in mediation Center to withdraw the false cases under sec 125 and DV act. And agreement to file mutual consent.
Good, go ahead. Hope this would settle all cases once and for all.
Shoneeji,
Thanks for this detailed anatomy. My query is same as to Rahul…pls reply.. awaiting your response..
Yes,
There are various judgments where wife was not allowed to continue litigation after getting Mutual Consent Divorce. Though it all depends on what was written in the agreement.
Shonee ji,
Thanks for the informative article.
You have mentioned that high courts now quash 498A FIR after divorce decree to prevent husband from backing out. But what if after divorce decree the wife disappears or refuses to cooperate in Quashing? Can the FIR still be quashed by husband alone based on MoU and divorce decree?
Also can the wife get the FIR quashed unilaterally ( without MoU and without help from husband ) before first motion by giving affidavit in HC that it was a false case ?
Thanks
Yes,
There are many such judgments, where HC has said that wife can not continue litigation after MCD. Though it all depends on how agreement was drafted. That is why the drafting of the agreement has to be done carefully.