Mutual divorce

After one year of seperation you and your wife can file for MCD. The court will give 6 months of waiting period for reconciliation. If after 6m both of you still want divorce then you can move the second motion and the court shall pass the decree.

Dear gautam

read section 13 B 

 

13B. Divorce by mutual consent. —-

¹[13B. Divorce by mutual consent. —(1) Subject to the provisions of this Act

a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)^*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

COMMENTS

Period of six months not mandatory

As provided in sub-section (2) of section 13B the period of six months cannot be taken as mandatory, because if it is mandatory the very purpose of liberalised concept of divorce by mutual consent will be frustrated, especially when the parties have live separately and there was no chance of reunion; K. Thiruvengadam v. Nil , AIR 2008 Mad 76.

Transitional period

(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move.

In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.

(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

The waiting period of 6m is mandatory and not directory. It can be waived only by the SC u/Art 142 and not by lower courts. Refer to Neeti Malviya Vs Rakesh Malviya, SC divisional bench judgment passed ON MAY 12, 2010.