How to apply for divorce where there is mutual consent in a Hindu marriage

Overview: When both the husband and wife agree to getting a divorce, i.e., when both the parties are voluntarily (out of free will) ready for a divorce, it is said to be done with mutual consent. 

Purpose: To put a legal end to a marriage in an amicable and settled way where both the parties have come to a consensus regarding various issues surrounding marriage like maintenance, alimony, custody rights, property rights etc. There is no limit on the amount of maintenance, the couple may agree on sole or joint custody of the child. 

Areas of Application of Law: The law applicable would be different and depend on which law they got marriage registered in. If they married under the Hindu Marriage Act, 1955 (Hindus, Buddhists, Sikhs, Jain), its rules would apply. If they were married under the Special Marriage Act, 1954 (secular law), its rules would apply. 

Process: Below is the step by step process for obtaining a divorce under mutual consent: 

It is imperative that the parties have been married for one year before they can file for divorce. It is also necessary for them to have been living separately for at least one year before heading for a divorce.

The party will have to engage a lawyer who will file a divorce petition at the requisite forum, usually a family court at the district level.

After the petition is filed, both the parties will have to record their statements before the district judge holding that they are in agreement of getting a divorce and that there is no coercion being faced by any of them. This is known as the first motion.

The parties will also have to mention each of their reasons for divorce.

Before the parties are present before the court again, there is a mandatory gap of six   months known as the cooling period extended to them in order to attempt reconciliation.

If either of the party is not cooperative during this time, it may form a ground for the court to not allow the divorce.

After passing of six months with failed attempts at reconciliation, the court will grant them a decree of divorce. 

Documents required to be submitted in the court:

  • Marriage certificate
  • Address proof of husband and wife
  • Evidence showing that they lived in separation for a year
  • passport size photographs
  • Income tax returns
  • Evidence showing attempts at reconciliation 

Punishment/Expected Relief: Freedom! Both the parties would be legally and officially unmarried under the divorce decree granted by the court. 

Landmark Judgments:

1. Smt. Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe (https://indiankanoon.org/doc/921070/

2. Dineshkumar Shukla vs Smt. Neeta (https://indiankanoon.org/doc/598908/)

 

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