How to file for mutual divorce in Delhi?

How to File for Mutual Divorce in Delhi: A Detailed Guide

Mutual divorce in India is governed under Section 13B of the Hindu Marriage Act, 1955, for Hindus, and under Section 28 of the Special Marriage Act, 1954, for interfaith couples married under that Act. A mutual divorce allows both spouses to end their marriage amicably if they agree that the marriage has irretrievably broken down.

Here’s a detailed guide on how to file for mutual divorce in Delhi:

Eligibility for Mutual Divorce

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

1. Mutual Consent: Both parties must agree to the divorce without any coercion or undue influence.

2. Separation Period: The couple must have been living separately for at least one year before filing for divorce.

3. No Reconciliation: The couple must acknowledge that they cannot live together and that the marriage has irretrievably broken down.

4. Agreement on Terms: Both spouses must mutually agree on terms related to:

- Child custody (if any).

- Alimony or maintenance.

- Division of property and assets.

- Other financial settlements.

Step-by-Step Process to File for Mutual Divorce in Delhi

Step 1: Drafting the Joint Petition

Both spouses must approach a lawyer to draft a mutual divorce petition. The petition must include:

- Names, ages, and addresses of both parties.

- Date and place of marriage.

- Reason for seeking divorce (e.g., irretrievable breakdown of marriage).

- Details of the separation period and lack of cohabitation.

- Agreement on terms related to alimony, custody, and property.

The petition should be signed by both parties and verified with their affidavits.

Step 2: Filing the Petition in Family Court

- File the petition in the appropriate Family Court in Delhi, having jurisdiction over:

- The place where the marriage was solemnized.

- The place where the couple last resided together.

- The place where either spouse currently resides.

- Pay the prescribed court fees (around ?15 to ?25, depending on the court).

Step 3: First Motion Hearing

After filing, the court schedules a First Motion hearing, where both parties must be present. During this hearing:

1. The court verifies the identity of the parties and ensures the petition is filed voluntarily.

2. The judge records the statements of both parties.

3. If satisfied, the court passes an order of First Motion and grants a six-month period (cooling-off period) for reconciliation.

Step 4: Cooling-Off Period

- The cooling-off period is provided to give the couple time to reconsider their decision.

- However, this period can be waived in certain cases where the court is convinced that reconciliation is impossible (*Amardeep Singh v. Harveen Kaur*, 2017).

Step 5: Second Motion Hearing

- After the cooling-off period (or earlier if waived), the couple files for the Second Motion.

- Both parties must again appear before the court.

- The court reviews the terms of the settlement and ensures that the decision to divorce is mutual and voluntary.

Step 6: Final Decree

- If the court is satisfied, it grants the divorce decree, officially dissolving the marriage.

- The decree is binding and marks the end of the marital relationship.

Documents Required for Mutual Divorce

1. Marriage Certificate: Proof of the marriage.

2. Address Proof: Of both spouses.

3. Photographs: Wedding photographs as evidence of the marriage.

4. Proof of Separation: Documents showing the couple has been living separately (e.g., rental agreements, utility bills, etc.).

5. Income Proof: Salary slips, income tax returns, or other financial documents (to determine alimony, if applicable).

6. Mutual Agreement: Written agreement detailing the terms of settlement.

Cost of Filing Mutual Divorce in Delhi

1. Lawyer’s Fees: Typically ranges from Rs.25,000 to Rs. 1,00,000 or more, depending on the lawyer's experience.

2. Court Fees: Nominal fees.

Family Courts in Delhi

You can file your mutual divorce petition in any of the Family Courts located in:

- Tis Hazari Court

- Saket Court

- Patiala House Court

- Karkardooma Court

- Rohini Court

- Dwarka Court

The choice depends on jurisdiction based on your residence or place of marriage.

Advantages of Mutual Divorce

1. Quick Resolution: Compared to contested divorces, mutual divorces are quicker and less time-consuming.

2. Amicable Process: It avoids prolonged court battles and bitterness.

3. Cost-Effective: Mutual divorces involve fewer legal costs compared to contested ones.

FAQs on Filing Mutual Divorce in Delhi

Q1. What is the minimum time required to get a mutual divorce in Delhi?

The minimum time is 6 months, which can extend up to 18 months. However, the 6-month cooling-off period can be waived, reducing the time.

Q2. Can the cooling-off period be waived?

Yes, the cooling-off period can be waived by the court if reconciliation is deemed impossible.

Q3. What if one spouse withdraws consent during the process?

Mutual divorce requires the consent of both parties. If one spouse withdraws consent before the Second Motion, the divorce cannot proceed as mutual and may convert into a contested divorce.

Q4. Can alimony be avoided in a mutual divorce?

Yes, if both parties agree to waive alimony in their mutual agreement, the court will not enforce it.

Q5. Can mutual divorce be filed online in Delhi?

While the initial filing and scheduling can be facilitated online in some cases, personal appearances in court are mandatory for recording statements.

Q6. Can mutual divorce be filed if the couple is living together?

No, the law requires the couple to have been living separately for at least one year before filing for mutual divorce.

Q7. Is the presence of both spouses mandatory during hearings?

Yes, both spouses must appear before the court for both First and Second Motion hearings.

Q8. Can mutual divorce be filed without a lawyer?

Although legally possible, hiring a lawyer is recommended for drafting the petition, filing documents, and representing the couple in court.

Q9. Are the terms of settlement enforceable after divorce?

Yes, the terms agreed upon in the mutual divorce agreement (e.g., alimony, child custody) are legally binding.

Q10. Can the divorce decree be appealed?

Mutual divorce decrees are final, and appeals are generally not allowed unless there was fraud or coercion involved.

Mutual divorce is a smoother, less adversarial way to end a marriage. By ensuring all terms are agreed upon beforehand and following the legal process, couples can achieve a hassle-free resolution in Delhi’s family courts.

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.in