Mutual Divorce

KEY TAKEAWAYS

• Divorce laws in India are mainly of three types : mutually consented divorce, contested divorce and void marriage.
• Different communities in our country are governed by different set of religious laws, especially in terms of marriage or divorce.
• In terms of contested divorce, or divorce which is not mutually consented, there exist a few conditions on the basis of which an individual can apply for divorce.
• Mutual divorce stands for that condition where both parties have mutually agreed to dissolve their marriage.
• It is mandatory for a couple to be living separately for about a year before they file for a petition of divorce.
• The essential conditions to file for a mutual divorce are – the partners must not be living together, they must feel that they cannot live together, they must jointly file the petition for divorce and consent to it mutually without any undue influence.
• The cooling period is not a mandatory condition in the procedure of obtaining divorce and can be waived off if the court feels that it would only cause more trouble to the couple.
• The procedure to file for a mutual divorce involves the first motion, the cooling period and the second motion.

INTRODUCTION

Marriage is considered to be a very essential institution in almost every society. This life event has been considered to be a very huge part of an individual’s life no matter which part of the globe they belong to. In the traditional sense, this institution is said to be a heterosexual union, however lately some parts of the world permit it to be of a homosexual nature too. Divorce in layman’s terms is the breaking of this pious institution of marriage, and for many people it stands as an experience which transforms their whole life, it is however not just limited to them as it also affects the family and the child/children in a variety of ways. This procedure can also end up being a very lengthy and costly one, as for even those couples who are equally inclined towards it need to prove that they have been separated for about a year, this stands as a pre-requisite to obtain a divorce. Our early society, did not consider that this sacrosanct of marriage should ever be broken and it was very later on (not before the year 1955) that this concept of divorce and judicial separation was introduced. The article will try to introduce the reader to various concepts like – divorce under various religious laws in our country, what are the legal grounds on which it can be obtained and also a deep dive into the concept of mutual divorce and aspects related to it.

The main purpose of this article is to focus on ‘Mutual Divorce’.

DIVORCE LAWS IN INDIA

With the advancement of time and also awareness amongst people especially in the social context our government has passed a variety of acts which aim at making the divorce rules in India accustomed to the present day and also ensuring that the procedure to obtain divorce is of a more progressive nature especially in terms of gender affairs and the sensitive issues related to it. There exist three broad categories into which we can classify the divorce laws in India. These categories are :

Divorce by mutual consent – this is when both the parties are willing to be separated from each other.

Contested divorce – under this scenario there are some specific grounds on the basis of which a partner can file for divorce. (they have been discussed ahead)

Void marriages – under this part, the court can declare any marriage to be void or deem it to be illegal. For example – bigamy, sapinda relationships etc.

DIVORCE UNDER VARIOUS LAWS

In a country like ours, where almost all personal matter are related to religion, it would be surprising if divorce wouldn’t come under this ambit. Different religious groups are governed by different set of laws, especially when it comes to the concept of divorce.

When we talk about the people belonging to the Jain, Sikh, Buddhist as well as the Hindu communities are governed by the Hindu Marriage Act of 1955, whereas those who belong to the Muslim community are governed by the Dissolution of Muslim Marriage Act of 1939, and the people belonging to the Parsi community are governed by the Parsi Marriage and Divorce Act of 1936 while the Christians are governed by the Indian Divorce Act of 1869. Apart from this, we also have a concept of inter-community marriages in our society which is governed by the Special Marriages Act of 1954. These have been discussed in detail below.

• Hindu Marriage Act (1955) – this act lays down provisions regarding a valid divorce, like when can a spouse file an appeal for divorce or when can they attain divorce or even how can they appeal in the court of law that their marriage must be dissolved. It is in the interest of the society that the marital relationship is surrounded by every safeguard for the cause which is specified by law. Under this act, the divorce is only granted in grave situation, otherwise alternatives to it are given.
• Dissolution of Muslim Marriage Act (1939) – under the Muslim law, there are two modes by which a marriage can be dissolved, they are : divorce and talaq. The difference between them is that, when an individual applies for divorce, they will be governed by the Dissolution of Muslim Marriage Act whereas, when an individual wants a talaq, they are governed by the Muslim Personal Laws.
• Parsi Marriage and Divorce Act (1936) – this act is also considered to be very important for the validity it holds to be a contract via an Ashirvad ceremony. Considering the small size of their community and restrictions like avoiding marriage between the priestly and non-priestly families, along with others it is most likely that close family members end up being possible partners.
• Indian Divorce Act (1869) – this act only applies to the people belonging to the Christian community, domiciled in India at the time when the petition is being presented.
• Special Marriages Act (1954) – the concept of inter-caste marriage is still considered as a taboo in many parts of our society and as a country we follow a very rigid caste system, in most cases, those who marry outside their caste are shunned by the society and in order to safeguard the interest of these people, this act had come into place. This act provides for a special form of marriage for the people belonging to India and all Indians in foreign countries irrespective of the religion they follow or the cast they belong to.

LEGAL GROUNDS FOR DIVORCE

The legal grounds on the basis of which a spouse can apply for divorce are :
(these grounds might not be applicable to all religions)

1. Cruelty – the form in which cruelty can occur can be physical as well as mental. As per the Hindu Divorce laws of our country, if one of the partners has a reasonable apprehension in their mind that the conduct of the other partner can either be injurious or harmful to them, then in that case it will be a sufficient ground to apply for divorce.

2. Adultery – the simpler term for adultery is cheating. It also means having voluntary sexual intercourse with a person outside their wedlock, or with someone who is not the spouse of the respondent. With this being said, the individual who files the complaint needs to prove that they were married to the so called respondent in the particular case, and the respondent had sexual intercourse with someone other than the petitioner.

3. Desertion – when one partner deserts the other without any reasonable cause, then it will be a reason for divorce. However, there must exist intention of one partner to desert the other and also there must be some evidence that it has been done.

4. Conversion – if one partner converts to another religion then in that case, the other partner can file for a divorce.

5. Mental Disorder – if a partner is not capable of performing the very basic and normal duties which are required in a marriage because of their mental illness, then in that case the other partner can file for a divorce. (provided the illness extends to the extent that they are not able to perform their normal duties of a married life)

6. Communicable Disease – if one partner in a marriage is suffering from any communicable disease like either HIV or AIDS or even syphilis, gonorrhoea or an incurable form of leprosy, then the other partner can file for a divorce on this ground.

7. Renunciation of the world – if one partner in a marriage, renounces their marriage and opts for sanyas, then the other partner can file for a divorce on this ground.

8. Presumption of Death – if in a marriage, one partner has not been known or heard of being alive for about a period of at-least seven years then the other partner, if alive can file to obtain a judicial decree of divorce.

Apart from these, there exist a few provisions or grounds which are solely available to a wife in a marriage and she can seek for divorce on the basis of these. They are :

i) During the time of the marriage, if the husband is already married and he has not divorced his wife and she is alive during that time.

ii) If the husband is guilty of committing offences which are unnatural like sodomy i.e. either rape or corruption, etc.

iii) If her marriage (whether it has been consummate or not) was solemnized before she even attained the age of fifteen years and she has abandoned the marriage after attaining that age but before attainting the legal age i.e. eighteen years.

MUTUAL DIVORCE

Mutual divorce or divorce with mutual consent stands for that situation where both the parties to a marriage mutually consent or agree to bring their marriage to an end, and file a petition in the court of law for the same. They agree for a peaceful separation and wish to dissolve their marriage legally. However, it was not the same initially because the Hindu Marriage Act did not consist of this provision when the act was introduced, it was later on i.e. in the year 1976 that an amendment into the act brought this concept into the picture. It is covered under Section 13B of the Hindu Marriage Act of 1955.

WHAT ARE THE ESSENTIAL CONDITIONS TO FILE FOR A DIVORCE WITH MUTUAL CONSENT

In order for a couple to approach the court to file for a divorce with their mutual consent, there are a few pre-requisites that must be fulfilled by them, these are :

• The partners must not be living together – it is Section 13B which states that in order for a couple to file for mutual divorce it is essential that they have been living separately for at-least a period of one year before they file for divorce, this period must be immediately before they file the petition. It is important that we understand that ‘living separately’ does not account for living under different roofs. This we emphasized by the Honourable Supreme Court in the case of ‘Sureshta Devi V. Om Prakash’, the court also explained that the parties can be living under the same roof and there can exist a distance between them.
• The petition must be put forward by both parties – in cases of a mutual divorce, it is essential that the petition to obtain a divorce is presented by the husband and wife in a joint manner and not just by one spouse alone. There should not exist any condition of bribe, undue influence or even fraud.
• The partners must feel that they cannot live together – it is one of the essential conditions that the partners must be feeling that they are not able to live with each other even after trying mediation or putting in a variety of efforts. This was emphasized by the court in the case of ‘Leela Joshi V. Mahadeo’.
• It is also necessary that both parties to a marriage feel that their marriage has collapsed and it would not be possible for them to carry this relation further.

There are also a couple of things which must be discussed between the husband and the wife before they file the petition for divorce. These are :

• The alimony or the maintenance and the amount that has to be paid for the same.
• It is also very crucial that they have a prior discussion about the custody of their children after their divorce.
• The couple should also have a discussion about how will they maintain their shared properties.
• After their divorce, it is natural that the couple would want to part ways and so it is important that they discuss the splitting of the properties and the assets that they own in a joint manner.

WHERE AND HOW CAN THIS PETITION BE FILED

The petition for a mutual divorce can be filed by a couple in the family court of either the city or the district where they lived as a couple for the last time. It can be the area where their matrimonial home was. This petition is filed in the court of law with the help of a divorce lawyer.

The procedure to file for a mutual divorce petition is as follows:

1. In the initial step, a divorce petition which has to be in the form of an affidavit should be signed before it is filed in the family court. This petition can also be filed within the local limits of the ordinary civil jurisdiction of the place where their marriage was solemnized.

2. After the petition is filed, the partners need to appear before the court in order to give their statements. When the court is satisfied and the statements have been recorded it is then that the first motion is said to have been passed, following this is a period of six months that is given to the husband and the wife before the second motion.
This waiting period is prescribed under Section 13B(2) of the Hindu Marriage Act, and it is given so that the parties re-think their decision of ending their marriage.

3. It is the second motion, where the final hearings of the case take place and also where the final statements by the parties are recorded. The divorce is granted if the issues of the custody of the children as well as the alimony have been discussed and well-settled with.

CAN A SPOUSE WITHDRAW THEIR CONSENT AFTER THE PETITION FOR MUTUAL DIVORCE HAS BEEN FILED

As per the divorce laws of our country, after a couple has filed for mutual divorce, one of the partners can withdraw their consent (even if it was mutual) within the six month period which is granted to them before the second motion. The partner is entitled to withdraw their consent if they file an application before the court which states that they do not wish to go further with the divorce anymore.

However, on the contrary, it was in the judgement of ‘Rajat Gupta V. Rupali Gupta’ that the court stated that the agreement between the partners for settling their issues and opting for a mutual divorce is a form of binding agreement and a type of undertaking. And it is now that if a party decided to withdraw their consent to this mutual divorce that they will be the undertaking that they made before the court of law and this might result in the civil form of contempt of court by them. This withdrawal must be made on just and reasonable grounds and it should also be ensured tat the other party does not face any form of prejudice.

WHAT CAN BE DONE IF ONE SPOUSE WITHDRAWS THEIR CONSENT

If in a mutual divorce, one of the partners withdraw their consent to go ahead with the divorce then the other partner is not left with a choice but to file for a normal petition of divorce under the provisions which have been mentioned under Section 13 of the Hindu Marriage Act.

HOW MUCH TIME DOES THE PROCEDURE OF FILING FOR A MUTUAL DIVORCE TAKE

The whole process of filing of the petition till divorce being granted takes about six months to one year from the date when the petition has been filed . However, it can vary from one case to another and also from one place to another.

IS THE SIX MONTH PERIOD BEFORE THE SECOND MOTION MANDATORY

The six month period also known as the cooling off period which is granted to the couple to either reconcile with each other or rethink their decision about getting the divorce is not a mandatory condition in the procedure of granting a divorce. If in certain cases the court is convinced that the marriage between the partners has reached a point from where there can be no return or this extension period would only contribute towards expanding the problems between them, then this period can be waived off by the court, and if not waived off, it can also extend for up-to eighteen months and in such cases the second motion is filed only between the time period of six to eighteen months.

This can be further explained using the example of cases like :

‘Amardeep Singh V. Harveen Kaur’ – in this case, there were internal disputed between the couple and they escalated to an extent where civil as well as criminal proceedings were followed by them. They had mutually agreed to file for a divorce and conditions like custody and alimony were discussed too. After looking at the scenario of this case, the Honourable Supreme Court felt that the cooling off period might just instigate their agony and thus decided to waive it off and grant them an instant divorce.

‘K. Omprakash V. K. Nalini’ – in this case the spouses were not happy with their marriage and were involved in extra-marital relationships. While both of them blamed each other for making them unhappy and being involved in such relationships, they never agreed that they themselves were involved in it. Their marriage had reached a point from where there was no return. They filed for a mutual divorce and contested that the cooling period be waived off because they had been living apart for a long period of time without even visiting or wanting to visit each other. Observing this and also the point that their marriage had reached, the court decided to grant them an instant mutual divorce by waiving off their cooling period.

CONCLUSION

We may have come forward in terms of development be it in the sense of globalization or the advancement of technology however even today as a society we lack a development of mindset or in other words a progressive and accepting mindset and it is so because a concept like divorce which is something very personal is not viewed from the perspective of the individuals who are involved in the marriage But is looked at something which impacts and affect the society.

The nature of our country is surely patriarchal and this patriarchy is so deep rooted into our minds because and issue like divorce which highly impacts the partners and their families, even that has become something where we do not fail two primarily question are women, or give them labels or continue to find the flaws even when we know that they might not necessarily be the guilty ones. It is not surprising that the countries where women are more empowered experience a higher rate of divorce because the women refused to step down and accept behaviour which is not acceptable or tolerate things which they shouldn't just for the sake of either their family or children.

The place where we lack as a society and the reason why we still consider this concept as a taboo is because even after we consider ourselves to be liberal we continue to condition our women to believe that it is their duty to stay in that marriage and make things work instead of walking out. What we fail to understand is that we need to consider walking out of either a toxic marriage or living with someone where you are not happy or it is affecting your physical or emotional or mental health in a negative way or affecting you psychologically is not okay and it is high time that firstly we understand that divorce should be a personal choice and it does not define someone’s character if they choose to walk out of a marriage and Secondly we need to teach our children that irrespective of their agenda it is not their duty to continue to stay into a bond for the sake of the reputation of their family in the society or even for the sake of their family or children.

Having said that we also need to understand that what happens between a couple should stay between them and if they want to opt for a divorce by mutual consent then in that case both the partners deserve equal respect and blaming one of them would be wrong. another good thing about the concept of mutual divorce is that when both the parties consent to it it avoids a lot of unnecessary agitation between them which also includes bad mouthing each other either in the courtroom or in front of their lawyers.

As a society we need to encourage this concept of mutual divorce rather than forcing our children or people to continue to stay in an environment which hampers them in almost every possible way.