“What
greater thing is there for two human souls than to feel that they are joined
for life – to strengthen each other in all labour, to rest on each other in all
sorrow, to minister to each other in all pain, to be one with each other in
silent, unspeakable memories at the moment of the last parting”. – George
Eliot
No individual has plan for divorce at the time
of solemnization of marriage. It is the result of circumstances. Individuals
should try and make possible efforts to save the marriage keeping the best
interests in mind.
Divorce is the legal dissolution of marriage.
Since India is a land of varied religious communities having their own marriage
laws, the divorce procedure too varies, according to the community of the
couple seeking divorce. Hindus as well as Buddhists, Sikhs and Jains can seek
divorce under the Hindu Marriage Act, 1955.
Hindu law permits free will, without court
approval, for marriage but does not permit divorce without court orders. The
divorce procedure in India is still complex and you will have to contest the
divorce for several months and is a long drawn legal affair. However, the time
and money required to obtain a divorce can be considerably shortened if the
couple seeks divorce by mutual consent.
Any claim of a party that he has
divorced his or her spouse by any other arrangement than a decree of competent
court is not legal and has no legal consequences. Any person claiming to be
divorced of his spouse in respect matrimonial relationship on any other
arrangement than by way of a decree of competent court is not sustainable in
law.
MUTUAL
DIVORCE, CONDITIONS
Section 13B of the Hindu Marriage Act 1955
provides for divorce by mutual consent. The mandatory requirements envisaged
under section 13B of the Hindu Marriage Act are that
(i) they have been living separately for a
period of one year or more,
(ii) that they have not been able to live
together,
(iii) that they have mutually agreed that the
marriage should be dissolved and petition is presented by both parties to the
marriage.
MUTUAL
DIVORCE, PROCEDURES
Mutual divorce is to be filed by the couple only
after they have lived apart for at least a year. The process is initiated by
filing a petition, supported by affidavits by both partners, in the district
court (also called family court). The presenting of the petition for divorce by
mutual consent is also legally knows as the “The First Motion Petition for
Mutual Consent Divorce”. The “Second Motion Petition for Mutual Consent
Divorce” when the partners reappears after six months before the court. A gap
of six months is provided in the statute between two motions, so as to offer
the estranged couple adequate time to reconsider their decision of dissolving
their marriage.
Some of the important issues on which the couple
should have agreed, in their petition for divorce by mutual consent are
(i) Custody of child;
(ii) Alimony (lump sum maintenance to be decided
between parties);
(iii) Returns of items (dowry, streedhan, etc);
and
(iv) Litigation expenses.
The mutual consent divorce petition should also
contain a joint statement by both the partners, that due to their
irreconcilable differences, they can no longer stay together and should be
granted a divorce.
The court is bound to pass a decree of divorce
declaring the marriage of the parties before it to be dissolved with effect
from the date of the decree, if the following conditions are met:
(a) A
second motion of both the parties is made not before 6 months from the date of
filing of the petition as required under sub-section (1) and not later than 18
months;
(b) After hearing the parties and making such
inquiry as it thinks fit, the court is satisfied that the averments in the
petition are true; and
(c) The petition is not withdrawn by either
party at any time before passing the decree.
If the second motion is not made within the
period of 18 months, then the court is not bound to pass a decree of divorce by
mutual consent. Besides, from the language of the section, as well as the
settled law, it is clear that one of the parties may withdraw their consent at
any time before the passing of the decree. The most important requirement for a
grant of divorce by mutual consent is free consent of both the parties. In
other words, unless there is a complete agreement between husband and wife for
the dissolution of the marriage and unless the court is completely satisfied,
it cannot grant a decree for divorce by mutual consent1.
In a mutual consent divorce petition, the
marriage between the parties cannot be dissolved only on the averments made by
one of the parties that as the marriage between them has broken down, no useful
purpose would be served to keep it alive. There may be cases where, on facts,
it is found that as the marriage has become dead on account of contributory
acts of commission and omission of the parties, no useful purpose would be
served by keeping such marriage alive. The apex court further observed the
sanctity of marriage cannot be left at the whims of one of the annoying
spouses 2.
Not
all estranged couples agree on the desirability, grounds or the conditions of
divorce. In such cases, one party files for divorce in the court, but the other
contests it. This forms the case for the filing of a contested divorce.
RELATED ARTICLE:
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Prepared
by: S. Hemanth
Advocate
at Hemanth & Associates
Email:
legal@hemanthassociates.com
|
