Questions Legal

How to get a mutual consent divorce in India?


Vani Asok

Sane and sound

The Hindu Marriage Act, 1995, gives both the wife and husband to engage in a mutual consent divorce. The Special Marriage Act also gives the right to get divorced mutually. Mutual consent divorce is the divorce carried out with the consent of both wife and husband under certain conditions and circumstances. There are certain conditions fulfilled to apply for the mutual consent divorce before court like,

  1. The husband and wife must be living separately for the past one year.

  2. Difficulty to live together for both husband and wife.

  3. The husband and wife must agree on the divorce.

  4. Must be married for at least one year to apply.

There are two perspectives on which the Husband & Wife have to attain an agreement. They are,

  1. Alimony/Maintenance - Husband and wife have to reach an agreement on the maintenance that the husband can give to the wife. There is no maximum or minimum limit for maintenance. It can be decided as per your comfort.

  2. Child Custody - This can also be pulled out efficiently between the parties. It would be best if you talked thoroughly to claim the child’s custody without affecting the mental and emotional conscience of the child.

You can apply for mutual consent divorce in any of the below-mentioned courts.

  1. Where couple attempting divorce last resided.

  2. Where the marriage was consecrated.

  3. Where the wife is currently living.

Steps to file the divorce

1.Petition to file for divorce 

A mutual divorce joint petition signed by both husband and wife, mentioning the difficulty in living together.

2.Appearing before Court and investigation of the petition

 Both partied must appear in front of the family court on the recommended date with the respective lawyers. The court will evaluate the file, including all the supporting documents. The court may recommend for reconciliation between the spouses.

3.Issuing order for recording the statements on oath

Once the petition is thoroughly examined, the court will issue the order to record the statements from both parties under oath.

4.Giving a 6 month period between first and second motion 

After recording the statements, the first motion is passed, and the court issue orders for 6 months period for the couple before they can file the second motion. The period between both motions can be up to 18 months.

5.Second Motion and the Final Hearing of petition

If the couple has decided to proceed with the second motion, they can pursue with the court hearing. This includes appearing of both parties and hearing of statements. As per the new order of the court, the court can waive off the 6 months period between first and second motion under the fact that the couple can't pursue living mutually if all matters are settled between them.

6.Declaration of Divorce 

Once the court is convinced about the request for divorce and that there is no possibility of cohabitation left, the court will decree the divorce. Here all the disputes, requirements, and rights are fulfilled before declaring the divorce.

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