How to File Divorce by Mutual Consent & Procedure?
Section 13B of the HMA Act 1955 provides for divorce by mutual consent, Statutory period of separation required is 1 year.
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.
In all there are two court appearances in a mutual divorce called First Motion and Second Motion.
- A joint petition signed by both parties is filed in court and statement of both parties are recorded before the Hon’ble Court this is called First Motion.
- Court gives parties 6 month period is given for reconciliation or any patch ups, (This is given as a last chance to the couple to change their mind.)
- After the first motion or at the end of the reconcile period i.e 6 months if both parties still don’t reconcile and wants divorce . Then the parties may appear for the Second motion, Record their statement in the court and Finally Divorce decree will be granted.
Parties need to mutually agreed upon in the petition for Divorce by Mutual Consent
- Custody of child
- Maintenance (lump sum maintenance to be decided between parties, If any)
- Returns of items (dowry, stridhan, etc); and any other terms.
- Any other terms and conditions like withdrawal of complaint filed by the parties etc
Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent.