The procedure for seeking a divorce by mutual consent is same under each Act, which is initiated by filing a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners present in Court, that due to their irreconcilable 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 to 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, before filling petition are custody of child, alimony to wife, return of dowry items and litigation expenses which should be mentioned in their petition for divorce by mutual consent.
However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an inquiry. 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 But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties. In recent times, the Courts have in some exceptional cases, done away with the 6 month waiting period and have granted divorce. There are various High Court judgments in this regard. However, it has now become a settled law that the Trail Courts cannot waive the 6 month cooling off period and it is only the Supreme Court in exercise of its jurisdiction under Article 142, can it waive the 6 month waiting period.
The Delhi High Court has held in the Sankalp Singh vs Prarthana Chandra case on 1 March, 2013, that the matrimonial court or the High Court has no power to waive the minimum period of six (6) months required to elapse between the first motion and the second motion and it is only the Supreme Court which can do so by exercising power under Article 142 of the Constitution of India. Where the Supreme Court finds an irretrievable breakdown of marriage it can do complete justice under the said Article: Numerous cases were cited by the Court in this regard. In India, there is no concept of out of court divorce. What all is out of court, a settlement to live separately & move for divorce from the competent court for legally dissolving the marriage by decree of divorce. In case there has been separation between husband & wife of more than one year, they both can file joint Petition for divorce by mutual consent in the District Family Court & seek dissolution of marriage by decree of divorce that will be granted to them by the court after six months of filling of the joint petition being satisfied that they have been living separately as husband & wife for more than one year at the time of filling the joint petition for divorce & there exist free consent of both for dissolving the marriage which was not withdrawn during the six months period after filling of the divorce petition.
Filing of the divorce creates a right on the woman to seek for temporary maintenance, during the pendency of the divorce petition in the Court (Section 24 of the Hindu Marriage Act). Also, when the marriage is severed by the Court, then the wife is entitled to seek permanent maintenance from the husband till the time she remains unmarried (Section 25 of the Act). The quantum of maintenance awarded to the wife depends on the qualification of the husband and wife, the living standard of the wife before being divorced, the income of the two, etc. also, you would be required to pay for the maintenance of your child.
-Regards
Advocate Pooja
www.lawkonect.com
