According to the Hindu Marriage Act, 1955; a petition for a ‘mutual divorce’ can be filed if you and your spouse are facing difficulties and have decided to part your ways legally. you can even file for divorce if the other party is not willing to get a divorce- this is called, ‘Contested Divorce’.
A divorce is the ending of a marital relationship through legal process, demanding a petition for divorce by one gathering. Only state judicial system contain legal system over divorcements, therefore the petitioning or disagreeing individual could just file in the State where he/she is and has actually been a citizen or where the marriage was celebrated. The complications of problems included such as property dividing and taxations may make it a good idea for both individuals to have professional legal and financial assistance. We are leading in top Divorce Lawyers in Indore.
What is Divorce by Mutual Consent?
Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one ground specifically enumerated in Section 13.
Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provides for divorce by mutual consent.
The conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more.
(ii) That they are unable to live together.
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed. Hence marriage should be dissolved. Under these circumstances, a Divorce by Mutual consent can be filed.
As per the Indian Legal system, a divorce procedure fundamentally begins with the filing of a divorce petition.
Where to file a divorce petition:
1. The court can be one where couple seeking divorce last lived.
2. The court can be one where the marriage was solemnized.
3. The court can be one where the wife is residing as of present.
The entire procedure of divorce in India starts begins with the divorce petition which is filled by the parties associated with the divorce process and notice of the same is served to the other one.
According to the Hindu Marriage Act, 1955; a petition for a ‘mutual divorce’ can be filed if you and your spouse are facing difficulties and have decided to part your ways legally.
You can even file for divorce if the other party is not willing to get a divorce- this is called, ‘Contested Divorce’.
Step 1: Petition to file for divorce
Firstly, a joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both the spouses on the ground stating that they have not been able to live together and have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more.
This petition will, then, be signed by both the parties.
Step 2: Appearing before Court and inspection of the petition
Both the parties will have to appear before the family court after the filing of the petition.
The parties would present their respective counsels/lawyers.
The court would critically observe the petition along with all the documents presented in the court.
The court may even attempt to bring reconciliation between the spouses, however, if this is not possible, the matter proceeds for further follow-ups.
Step 3: Passing orders for a recording of statements on oath
After the petition is scrutinized by the court and it satisfies, it may order the party’s statements to be recorded on oath.
Step 4: First Motion is passed and a period of 6 months is given before the Second Motion
Once the statements are recorded, an order on the first motion is passed by the court.
After this, a six months period is given to both the parties to a divorce, before they can file the second motion.
The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.
Step 5: Second Motion and the Final Hearing of petition
Once the parties have decided to go further with the proceedings and appear for the second motion, they can proceed with the final hearings.
This includes parties appearing and recording of statements before the Family Court.
Recently, the Supreme Court has held that the 6 months period given to the parties can be waived off at the decision of the court.
Therefore, the parties who have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties, this six months it can be waived off.
Even if the court is of the opinion that the waiting period will only extend their sufferings, the six months can be waived off in this case also.
Step 6: Decree of Divorce:
In a mutual divorce, both parties must have given consent and there shall not be any differences left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc.
Thus, there needs to be complete agreement between the spouses for the final decision on the dissolution of marriage.
If the court is satisfied after hearing the parties that the allegations in the petition are true and that there cannot be any possibility of reconciliation and cohabitation, it can pass a decree of divorce declaring the marriage to be dissolved.
The divorce becomes final once the decree of divorce has been passed by the court.
Some of the Frequently asked Question for our Divorce Lawyers are
Under Hindu Law after marriage what is the period of time required to apply for divorce?
Under Hindu Marriage Act no petition for divorce can be submitted in less than one year of the marriage. However if the appellants claim is of remarkable trouble High Court is allowed to give leave to submit the case before the completion of one year.
How much time does it take to finalize a divorce claim?
In case of divorce by approval from both the parties, order of divorce could be acquired any time between six months to eighteen months. This duration may be further decreased relying on the demands of the circumstance. In contested divorce claims, divorce is usually acquired after 18 to 30 months and sometimes may be longer than that. Nevertheless, time component depends upon number of aspects like how strongly claim is being addressed, issue of maintenance, etc.
In India is it necessary that both the parties have to attend the court hearing for divorce?
If divorce is by shared consent then both of them are required to attend the hearing. However based on the area of filing, it is likely to prevent the presence of at the least one partner.
How many times should I visit the court hearing if I applied for divorce?
Minimum of 2 times is necessary. But depending on the location of filing, it can be cut back to one time.For the maintenance of wife and child what is the amount to be given during the course of divorce It relies on the details and situations of the case. After How much time a divorced person get, married again .The duration of claim as delivered under Hindu Marriage Act is 30 days from the day of the judgment.
Exactly what are the papers demanded for the application of mutual consent divorce?
Papers include Address evidence of husband, Address proof of Wife, Marriage Certificate and Four passport photographs of marriage of both partners.
