How can I get mutual divorce immediately in India?

How to Obtain a Mutual Divorce Immediately in India: A Detailed Guide

Mutual divorce in India is a legal process under the Hindu Marriage Act, 1955, where both spouses agree to dissolve their marriage amicably. The process of obtaining a mutual divorce is relatively straightforward when compared to a contested divorce, as it involves fewer legal disputes. However, the term "immediately" must be understood within the legal framework, as Indian law mandates certain timeframes that cannot be bypassed.

Legal Framework Governing Mutual Divorce in India

Mutual divorce in India is governed by:

1. The Hindu Marriage Act, 1955 - Applicable to Hindus, Buddhists, Jains, and Sikhs.

2. The Special Marriage Act, 1954 - Applicable to interfaith marriages and those not covered under personal laws.

3. The Indian Divorce Act, 1869 - Applicable to Christians.

4. The Muslim Personal Law (Shariat) Application Act, 1937 - Applicable to Muslims, though the concept of mutual divorce (Mubarat) exists.

Conditions for Filing Mutual Divorce

Before filing for mutual divorce, the following conditions must be met:

1. Separation for One Year: The couple must have been living separately for at least one year. "Living separately" does not necessarily mean living in different locations; it means that the couple has not been living as husband and wife.

2. No Possibility of Reconciliation: Both parties must agree that they cannot live together and that the marriage has irretrievably broken down.

3. Mutual Consent: Both spouses must agree to the divorce without any coercion, fraud, or undue influence.

Procedure for Obtaining Mutual Divorce

The process of obtaining a mutual divorce involves the following steps:

1. Filing the Joint Petition

- The couple jointly files a petition for mutual divorce in the family court of the district where the marriage was solemnized, where the couple last lived together, or where either spouse currently resides.

- The petition must include details like the date and place of marriage, information about the couple, children (if any), the reason for seeking divorce, and a statement affirming that the decision to divorce is mutual.

2. First Motion Hearing

- After the petition is filed, the court schedules the first motion hearing. During this hearing, the court examines the petition, verifies the content, and records the statements of both parties.

- The court may attempt reconciliation during this stage. If the court is satisfied that the couple has made the decision voluntarily and there is no chance of reconciliation, it passes an order for the first motion.

3. Cooling-Off Period

- A mandatory six-month cooling-off period is provided after the first motion. This period is intended to give the couple time to reconsider their decision.

- However, the Supreme Court of India, in the case of Amardeep Singh v. Harveen Kaur (2017), held that the cooling-off period could be waived under certain circumstances, such as if the couple has already been living separately for a long time, there is no possibility of reconciliation, and both parties request the waiver.

4. Second Motion Hearing

- After the cooling-off period, or immediately if it is waived, the couple must appear before the court for the second motion hearing. The court re-examines the case and records the final statements of the couple.

- If the court is convinced that the couple still wishes to go through with the divorce and that all the legal requirements have been met, it passes the final decree of divorce, thereby dissolving the marriage.

5. Final Decree of Divorce

- Once the court is satisfied that all conditions have been met, it issues the final decree of divorce. The marriage is legally dissolved, and the decree serves as official proof of the divorce.

Waiver of Cooling-Off Period

The Supreme Court has allowed the waiver of the six-month cooling-off period in certain cases, enabling couples to obtain a mutual divorce faster. To avail of this waiver:

1. File a Waiver Petition: The couple must file a separate petition requesting the court to waive the cooling-off period.

2. Grounds for Waiver: The petition should provide valid reasons for the waiver, such as long separation, urgent need for divorce, or any other compelling circumstances.

3. Court's Discretion: The waiver is granted at the discretion of the court, and the court must be convinced that there is no chance of reconciliation and that the decision to divorce is final.

Legal Implications of Mutual Divorce

1. Finality of Divorce: Once the decree is passed, the marriage is legally dissolved, and both parties are free to remarry or live separately.

2. Custody of Children: The petition must include arrangements for the custody of children, if any. The court will ensure that the custody arrangements are in the best interest of the child.

3. Alimony and Maintenance: The mutual divorce petition must also include the terms of alimony, maintenance, and the division of assets. These terms must be agreed upon by both parties and approved by the court.

4. No Further Claims: After the mutual divorce, neither party can make any further claims against the other, except as per the terms agreed upon in the divorce settlement.

FAQs on Mutual Divorce in India

Q1: Can mutual divorce be obtained without going to court?

• No, mutual divorce in India must be obtained through a legal process in family court. Both parties need to appear in court for the hearings.

Q2: How quickly can a mutual divorce be obtained?

• Typically, a mutual divorce takes about 6 to 8 months due to the mandatory cooling-off period. However, if the cooling-off period is waived, the divorce can be obtained in a shorter time, sometimes within a few weeks.

Q3: What documents are required for filing a mutual divorce?

• Essential documents include the marriage certificate, joint marriage photographs, address proof, income statements, details of jointly owned properties, and a mutually agreed-upon settlement agreement covering alimony, child custody, and asset distribution.

Q4: Can the cooling-off period be waived?

• Yes, the cooling-off period can be waived under specific circumstances if both parties request it and the court is convinced that there is no possibility of reconciliation.

Q5: Is legal representation necessary for a mutual divorce?

• While it is not mandatory to have a lawyer, it is advisable to seek legal assistance to ensure that the petition is correctly drafted and that all legal formalities are completed smoothly.

Q6: What happens if one party withdraws consent during the process?

• If either party withdraws their consent before the final decree, the mutual divorce process cannot proceed, and the case will be dismissed. The other party may then have to file for a contested divorce.

Q7: Can mutual divorce be obtained if the couple has been married for less than a year?

• Generally, a divorce petition cannot be filed within the first year of marriage. However, in exceptional cases, the court may grant permission to file earlier if there is sufficient cause.

Q8: What is the role of a settlement agreement in mutual divorce?

• The settlement agreement is a crucial document that outlines the terms of alimony, child custody, and division of assets. It must be mutually agreed upon by both parties and submitted to the court along with the divorce petition.

Q9: Can mutual divorce be obtained without a lawyer?

• While you can file for mutual divorce without a lawyer, it is recommended to have legal assistance to navigate the complexities of the legal process, especially in drafting the settlement agreement and ensuring all legal requirements are met.

Q10: What if the spouse is living abroad?

• If one spouse is living abroad, they can still participate in the mutual divorce process through a power of attorney or video conferencing, depending on the court's acceptance of such arrangements.

Q11: Are there any legal fees associated with mutual divorce?

• Yes, there are court fees and legal fees involved. The amount may vary depending on the court's jurisdiction and the complexity of the case.

Q12: What happens to joint assets in a mutual divorce?

• Joint assets, such as property or bank accounts, are usually divided as per the terms agreed upon in the settlement agreement. The court will ensure that the division is fair and equitable.

Q13: Can we file for mutual divorce in any family court in India?

• No, the petition for mutual divorce should be filed in the family court that has jurisdiction over the place where the marriage was solemnized, where the couple last resided together, or where the wife is currently residing.

Q14: What happens if one spouse refuses to sign the settlement agreement?

• If one spouse refuses to sign the settlement agreement, the mutual divorce process cannot proceed. The other spouse may have to consider filing for a contested divorce instead.

Q15: Can the terms of the settlement agreement be changed after the first motion?

• Yes, the terms of the settlement agreement can be modified after the first motion, but both parties must agree to the changes, and the revised agreement must be submitted to the court.

Q16: Is it possible to remarry immediately after obtaining a mutual divorce?

• Yes, once the court issues the final decree of divorce, both parties are legally free to remarry. However, it's advisable to wait until the decree is officially documented and any appeals period has passed.

Q17: What if the other spouse is untraceable or missing?

• Mutual divorce requires the consent and presence of both parties. If one spouse is missing or untraceable, mutual divorce is not possible. The present spouse may need to file for a contested divorce under different legal grounds.

Q18: Can mutual divorce be obtained online?

• While certain stages of the process, such as filing and appearances, may be facilitated online or via video conferencing, especially in some jurisdictions, the process still requires legal procedures that typically involve physical court appearances.

Q19: Are there any specific grounds required for mutual divorce?

• No specific grounds are required for mutual divorce other than the mutual consent of both parties and a minimum one-year separation period. The couple simply needs to demonstrate that they can no longer live together as husband and wife.

Q20: What role does mediation play in mutual divorce?

• Mediation is often used to help couples reach an agreement on contentious issues like alimony, child custody, and property division. Successful mediation can streamline the mutual divorce process by resolving disputes before filing the petition.

Q21: Can we include terms about post-divorce maintenance in the settlement agreement?

• Yes, the settlement agreement can include terms regarding post-divorce maintenance or alimony. This is a crucial aspect of the agreement and should be carefully negotiated and documented.

Q22: What if we reconcile after filing for mutual divorce?

• If the couple reconciles after filing for mutual divorce, they can inform the court of their decision and withdraw the divorce petition. The court will then dismiss the case.

Q23: Can mutual divorce be obtained if one spouse is not an Indian citizen?

• Yes, mutual divorce can be obtained even if one spouse is not an Indian citizen. The process will follow Indian law, and the non-Indian spouse may need to comply with additional legal formalities, such as providing proof of identity and residency.

Q24: Is it possible to get a mutual divorce without attending the court hearings in person?

• In some cases, one or both parties may be allowed to attend hearings via video conferencing, especially if they are living abroad or unable to attend in person. However, this is subject to the court's discretion and specific circumstances.

Q25: What happens if we decide to cancel the mutual divorce process after the first motion?

• If both parties agree to reconcile and cancel the mutual divorce process after the first motion, they can withdraw the petition. The court will then dismiss the case, and the marriage remains legally intact.

Q26: Can a mutual divorce be challenged?

• Once the final decree is passed, it is difficult to challenge a mutual divorce unless there is evidence of fraud, coercion, or concealment of important facts.

Conclusion

Obtaining a mutual divorce in India is a relatively streamlined process, provided both parties agree on all terms and conditions. While the law mandates a cooling-off period, it can be waived in certain cases, allowing for a quicker resolution. Understanding the legal requirements, documentation, and procedure is crucial for ensuring a smooth and hassle-free divorce process. Seeking legal assistance is recommended to navigate the complexities and ensure that all legal formalities are adequately done. A lawyer can provide valuable guidance, help draft accurate and comprehensive agreements, and ensure that all legal formalities are completed correctly.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304

www.jsrohilla.com