Divorce by Mutual Consent under Hindu Law
Govind Sharma
(Querist) 17 June 2011
This query is : Resolved
Hi,
If a couple married 2 and half years back, they don't have any children wants to give divorce through mutual consent, what process need to be followed?
They both don't want to hire lawyer. What documents they need to attach with the application. Is giving any reason necessary for that?
Husband is ready to return all Streedhan given by the girl's family. for this, does he need to submit to the court? In which court they both should apply? What is the format for such divorce?
The girl doesn't want to appear before the court but ready to sign divorce through mutual consent. Is it mandatory for her to appear before court and testify?
Also, the wife is a working women. does the husband need to pay settlement amount? If both of them agreed that no need to pay settlement amount and legal expenses, will court accept such petition?
Well, the girl has not applied yet for marriage registration and also, she is not using her husband's surname anywhere even after marriage
please guide.
A V Vishal
(Expert) 17 June 2011
Divorce by Mutual Consent
Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.
Procedure for Filing for Divorce
The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconciliable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.
However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an enquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties.
The actual process of filing for divorce, however, begins with the hiring of a lawyer. The importance of having an efficient lawyer cannot be over-emphasized, if one is to get through the complexities of the legal system in India. So whether a person is filing for divorce or contesting one, he/she should see that the lawyer is not only well-versed with laws related to marriage and divorce under the relevant marriage act, but also has adequate experience in guiding his/her client to the best possible divorce deal from the court.
After the petitioner and his/her lawyer have decided on which grounds to file for divorce, a divorce petition is formally drafted and filed in the relevant court. The petitioner is required to provide his/her legal representative with photocopies of the following documents:
Income tax statements for the last 2-3 years
Details of the petitioner’s profession and present remuneration
Information related to family background of the petitioner
Details of properties and other assets owned by the petitioner
Here it may be mentioned that it is in the interest of the petitioner, to provide all details of his/her marriage to the lawyer. This will not only include facts related to when and where the petitioner and spouse got married, but also details on how problems cropped up in their marriage and the events that finally led to the petitioner seeking divorce. The more honest the petitioner is with the lawyer, the easier it will be for the latter to present a strong case for his/her client.
After the first petition for divorce has been filed, the petitioner can sign a “vakalatnama” is which a document giving the lawyer the authority to represent the petitioner in court. After the petition has been received by the court, it will send a notice and a copy of the petition to the estranged spouse of the petitioner, asking him/her to appear before the court on a specified date. From here on, the legal process of seeking a contested divorce will take its own course.
Alimony
A divorce is not just a dissolving of a personal relationship. Since marriage is a social institution, its dissolution has far-reaching consequences on the whole family. And these consequences are both emotional and financial. The worst sufferers of divorce are women, who are not only find themselves bereft of the means to acquire basic necessities like food, clothing and shelter, but are also left to take care of the children from a broken marriage. To protect their interests, the Indian legal system has consistently tried to better the financial situation of women, by provisions of alimony.
Alimony is the financial support that a spouse is required to provide an estranged partner during and after a divorce. Alimony is usually granted to women, since they are traditionally homemakers, and thus find it difficult to support themselves and their children after a divorce. However, due to the concept of equality of the sexes and with increasingly economic independence of women, alimony can now be sought by either spouse, depending on the particular financial condition of each. Some of the factors which determine whether alimony is to be paid, how much and for how long are:
Current financial support. Alimony is generally not granted by the court to the seeking party if the latter is already receiving financial support, during the time of the divorce.
Duration of marriage. The quantum and duration of alimony depends on how long the couple had been married before filing for divorce. Spouses who have been married for more than ten years, for instance, may be granted lifelong alimony.
Age of the recipient. Often the alimony granted to a younger spouse is for a shorter tenure, if the court thinks that the recipient can eventually become financially sound, with career advancement.
Financial position of either spouse. If the divorce takes place between two parties with unequal resources, the higher-earning spouse is generally asked to pay a substantial amount as alimony, in order to equalize the financial condition of the spouses. Similarly, a spouse with very profitable financial prospects is usually asked to cough up the alimony amount.
Health of spouse. If the seeker is in poor health, the court usually orders the other spouse to pay a high alimony to take care of the former’s healthcare expenses.
Respective marriage laws. The terms and conditions of alimony, also vary from one personal law to another. Thus, whether and how much alimony the seeker will be granted, will depend upon the laws according to which he/she got married.
Maintenance by public body. In exceptional conditions, the court can direct that the seeker be paid maintenance after divorce, by a public body.
While in the Western countries, alimony is an obligation ordered by the court to the financially stronger spouse, in India it is not yet an absolute right of the seeker. Rather the awarding of alimony, its amount and duration are determined by the financial position and family circumstances of the respective spouses.
Child custody. Another aspect of divorce which leads to a great deal of emotional trauma and legal complication, is child custody. This is because divorce entails the breakdown of the entire family. The child is not only separated from one of the parents, but may also lose other siblings and the wider extended family. The Hindu Marriage Act 1955, has exhaustive laws related to child custody and child support. If the child is below five years, the custody is unanimously awarded to the mother. In case of older children, the custody of a girl child is generally given to the mother, and that of the boy child to the father. Visitation right is an important aspect of child custody, which specifies how frequently of the estranged parent can meet his/her children.
Child support is intricately linked to child custody, since it is most practical for the parent taking care of the child, to receive financial support for bringing up the child. In an overwhelming majority of divorce cases, it is the mother who is entitled to child support, since she is the primary caretaker of the child or children post-divorce. However, like alimony rights, child custody and support are also of subject to respective marriage laws of the estranged couple. In case of divorce by mutual consent, the parents should to take the help of a lawyer in order to thrash out the details of child custody and child support. In cases of contested divorce, on the other hand, the receiving parent is best advised to make a strong claim for child support, under the guidance of her lawyer. Finally, it is up to the court to specify the amount and duration of child support, where the divorce is being contested.
Govind Sharma
(Querist) 17 June 2011
Hi
Thanks for this reply and I am aware about all these facts. My queries are very specific
1. Don't want to hire a lawyer (Not affordable for husband at least, is hiring an advocate is must
2. Wife is earning so still the question of alimony arises?
3. Streedhan will be returned
4. What is the specific format
5. Is reason need to be provided? If Judge doesn't agree on reason specified then what?
Ravikant Soni
(Expert) 17 June 2011
When you aware of facts of such a answer then you must know that anyone can get remedy from the courts without engaging a lawyer.But self medication is harmful.
In mutual consent div. pet. not question arise as to alimony.
If both living separate voluntarily then wife can not seek alimony.
Govind Sharma
(Querist) 17 June 2011
Thanks a lot Ravikantji. This is an answer I am seeking. See, since this is the mutual consent divorce so I think without engaging a lawyer can also you can seek divorce.
What evidence does anybody need to submit to show that they both are living separately for a year or more
