Author- Gurvinder Kaur Bagga

“Spouses don’t win or lose in divorce by proving the other guilty, it’s a couple of mutual loss.”

DIVORCE is a legal process by which the knot of marriage between two persons seems to be untied forever. It rarely happens when you see a couple compromising again to live with one another after divorce. They are distinguished under different laws like Hindus which include Sikhs, Jains, Buddhists are governed by Hindu Marriage Act, section 13-B, 1955 whereas Christians are governed by the Indian Marriage Act, 1869 and the Christian Marriage Act,1872.

The Muslims are governed by Personnel laws of divorce and also the dissolution of Marriage Act, 1939.  Parsis are governed by Parsi Marriage & Divorce Act-1936. Apart from the above laws, other marriages are governed by the Special Marriage Act,1954.

Divorce signifies that the love and relation between any couple have now been eradicated somehow. Separation of spouses with mutual consent and custody of their children are all dealt with in family court after filing the petition. Both the divorce parties are then given a six months’ time period for further proceedings. When the given tenure is completed, they further go for statement recording of both parties and settling property-related issues at the end of the case. This is a situation where not only two adults are indulged in any tragedy but a depressing phase for two families who have to face society’s distressing questions and relatives futile arguments and taunts.

Marriage is not only an alliance made through laws but a sacred and divine relation that is built on two major pillars that is trust and respect among two families which are now collided with each other just like stars as per God’s plan. Sometimes people make themselves understand that it was meant to end that way and some people keep on cursing one another about whatever happened in their past. Marriage involves only ten per cent investment of money, rest ninety per cent is the investment of two souls in one another for life and if that lacks then no relation could have a happy ending. It’s the laws that bound two persons together but if you fail to walk on the path carefully then the same law helps you to get separated as per the above-mentioned Marriage Acts in India.

Someone very truly said, “The ceremony took six minutes. The marriage lasted about the same amount of time though we didn’t get a divorce for almost a year.”

DIVORCE BY MUTUAL CONSENT (SECTION 13-B)

The concept of mutual divorce was added in the year 1976, after an amendment was made to the Hindu Marriage Act,1955. Section-13B of the Hindu Marriage Act,1955 states that when both the parties don’t want to live with each other and agrees to terminate their marriage on mutual consent then they can look for mutual divorce.

The crucial element that are required for mutual divorce are:

• The appeal should be filed by both spouses before the district court.
• Before filing the petition, both the spouses must have been living separately for the period which consists of 1 year.
• There has to be free consent by both parties to dissolve their marriage.
• It is not possible for the parties to live together under any circumstances.
• A cooling-off period is given to the parties that are from six months to eighteen months.
• A decree will be passed only after the six months from the date of filing the petition and before the expiration of the term that is eighteen months.
• According to Section 23(1) (bb) of the Hindu Marriage Act,1955 there should be free consent in case of mutual divorce, the consent should not be acquired by force, fraud or undue influence.

Living Separately does not mean that they are living in different places. Even if both parties are living under the same roof and they are not living as a spouse, then it can be considered that they are living separately. This was held in the case of Sureshta Devi v. Om Prakash AIR 1992.

PLACES WHERE THE PETITION FOR DIVORCE CAN BE FILED?

The petition of divorce can be filed under the following places:

• The place where they last lived as husband and wife
• The place where the marriage of the couple was solemnized
• The place where the wife is currently living

PROCEDURE FOR FILING A MUTUAL DIVORCE

Step 1: TO FILE A JOINT PETITION

The first step that is required for seeking a mutual divorce is to file a joint petition for termination of their marriage before the Family court by stating the grounds that they don’t want to live with each other as they have not been able to reunite by resettling their disputes and they have been living separately for more than one year. There must have been an agreement between the parties regarding the alimony, custody of the child, and property. The petition should be signed by both parties by having mutual consent to terminate their marriage.

DOCUMENTS THAT ARE REQUIRED WITH PETITION ARE

• Address proof – Husband
• Address proof – Wife
• A certificate of marriage
• Invitation Card of marriage
• Marriage Photographs (Four)
• Details of the assets that the spouses possess
• Spouses last three years statement of income tax
• A piece of evidence that shows the failed attempts of reunion
• A piece of evidence that proves that the couples were living separately for more than one year.
• Details regarding the background of the family
• Income details of the spouses

Step 2: TO APPEAR BEFORE THE COURT

Both the litigants have to appear before the family court with their legal consultant. A judge will see all the contents and the documents of the petition and after seeing, the court may endeavour to resolve their differences.

Step 3: TO RECORD THE STATEMENT ON OATH

The third step is that the party’s statements should be recorded on oath if the court may direct to do so after seeing all the contents and the documents.

Step 4: TO PASS THE FIRST MOTION AND TO GIVE A PERIOD OF SIX MONTHS BEFORE THE SECOND MOTION

After recording the statements of both the parties, the order is passed by the court for the first motion and a period of six months is given to both parties before filing the second motion. Eighteen months is the maximum period to file the second motion from the date of presentation of the petition.

Step 5:  SECOND MOTION AND FINAL HEARING OF PETITION.

The parties who once decided to move forward can proceed with the final hearing of the petition for further proceedings and to appear for a second motion and on the other hand, the parties who have settled their issues regarding the child custody and the alimony and the waiting period will rather spoil their life more so in that case the court waive off the waiting that is six month.

Step 6: FINAL DECREE

Both the parties have given consent and there are no differences left regarding child custody and alimony. There is a complete agreement between the parties to terminate their marriage and there is no hope of a reunion between the parties then the court can pass the decree of divorce after seeing all the statements. When the decree of divorce is obtained by the court the divorce becomes final.

IS IT OBLIGATORY FOR THE PARTIES TO WAIT FOR A PERIOD OF SIX MONTHS?

Yes, it is possible that the parties can take back their decree. This same was held in the case of Santosh Kumar v. Virendra Kumar AIR 1986, The Hon’ble Rajasthan High Court held that the cooling-off period (i.e. sixth months to eighteen months) is given for the purpose of resolving the dispute between the spouses and if they think that they have taken the wrong decision and want to live with each other so they can withdraw their petition.

HOW CONTESTED DIVORCE IS DIFFERENT FROM MUTUAL DIVORCE

Mutual divorce is a divorce where both the parties have mutual consent to dissolve their marriage whereas in the case of contested divorce only one party desire to file a divorce against the other. In case of mutual divorce there is only one ground that is the husband and wife do not want to live together as there is no hope of reunion and want to mutually end their marriage but in case of a contested divorce, the grounds that are involved are cruelty, adultery, mental illness, conversion of religion etc. In the case of mutual divorce cooling-off period is given to the spouses so that they can resettle their dispute but there is no such conception in case of a contested divorce. The proceedings that are involved in mutual divorce and in a contested divorce are somewhat different. Procedure to file a mutual divorce involves- to file a joint petition, appear before the court, recording the statement, first motion, second motion, final decree and whereas the procedure involved to file a contested divorce include- file a divorce petition, notice of the court to other parties, recording of the statements, examination and cross-examination of the witness and a final decree.

SUGGESTION AND CONCLUSION

Divorce is one of the most serious and common issues in society. It not only affects the divorced parents but also their children as they go through the traumatic experience of separation. It causes stress, pain and mental disorder.

Although mutual divorce is very easy and the cheapest way of getting divorce with the mutual consent but on the other hand what if one spouse is not ready to discuss anything regarding the divorce or when they start talking with each other, they start fighting with each other in that situation one can only go for contested divorce. If the couples are not happy and they don’t want to live with each other so they can go for mutual divorce for dissolving their marriage.

I think mutual divorce is a better option as the spouses have the freedom to settle all their issues on their own and then take the decision and move ahead in their lives. It also helps in removing the avoidable argument and saves plenty of time. It does not allow the partners to go through the disputes and is very cost-effective.

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Author Gurvinder Kaur Bagga is a second-year law student at Amity University, Lucknow Campus.