The concept of Divorce by mutual consent was introduced by the Parliament via an amendment in 1976 to the Hindu Marriage Act.
A divorce by mutual consent is perhaps one of the most fantastic features of law under the marital law in India as it seeks to put an end to long drawn litigation and help the parties part their ways in an amicable manner.
To obtain a decree of divorce by mutual consent, the time frame laid down as per law is a period of six months. But even though parties decide to separate amicably, the process to initiate the same in a court of law leaves many persons overwhelmed. However, the process is much more simplified as you think it to be.
To file a petition for divorce by mutual consent, the petition can be filed in any of the following three places-
- Place where marriage had taken place
- Place where husband and wife last resided together.
- Place where wife is residing at the time of filing of the Petition
For the First motion to be granted, it is imperative that both the parties visit the court to record their statements for the purpose of the divorce. The presence of both the parties is absolutely necessary. However, if a party is unable to appear in court due to some unavoidable circumstances, he/she may appear through the power of attorney. A power of attorney could be anyone but it is preferred if such an authority is given to the family member of the particular spouse.
It must be noted that even though the parties agree to get divorced on an agreement, the court directs the spouses to wait for six months before proceeding with the Second Motion. This waiting period of six months can be extended upto eighteen months at the insistence of the court.
Now one may wonder why this period of six months applies in all cases. The waiting period of six month is given to the parties to reconsider their decision and try to reconcile their differences. In many cases it may so happen that the parties have taken their decision in haste and/or in anger, then this six months duration acts as a “cooling off” period for the parties to start afresh and introspect their decision.
In India, marriage is a sacred institution and also the foundation of the society, so the court uses this power of the waiting period to try and save this institution from breaking down and maintaining its sanctity.
However, this period of sixth months can be waived off if it is a case of ‘irretrievable breakdown’ of marriage. In a case of irretrievable breakdown of marriage, the circumstances between the estranged parties exist as such that there is no hope for reconciliation between the two. In such instances, the court in its discretion may waive off the six months period and grant the decree of divorce immediately thereby dissolving the marriage.
But in other cases, the parties have to wait for a minimum of six months to file the second motion for divorce in case they are not able to resolve their differences. In such a situation, the court after hearing and recording the statements of both the parties, grants a decree of divorce which brings the marriage to an end.
There may be instances where the parties after the waiting period decide to reconcile, in such circumstances the parties can withdraw their application for divorce and the courts proceedings come to an end with the spouses maintaining their conjugal relationship in the same manner as it existed before the filing of the divorce petition.
Author: This blog is written by Ms. Mrinaal Datt, a passionate blogger & intern at Aapka Consultant.
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