Introduction
Marriage is seen as a vehicle of personal fulfilments than an intimate or Interdependent relationship. Presently, marriage has grown as less,institutionalised and more individualistic forming interdependent partnerships. Spouses are more likely to have their separate bank accounts, more desire to live separate from each other, social groups, and option not to have children, less caring attitudes and affection, having separate family names and not considering their marriage as a permanent union.Marriage is a legally and socially sanctioned union, typically between two people, that establishes rights and obligations between them, as well as between them and any resulting children. Its definition and characteristics vary widely across cultures, religions, and legal systems.
Mutual divorce is becoming an increasingly popular option for couples seeking to end their marriages amicably. Unlike contested divorces, which can be lengthy and emotionally draining, mutual divorce is based on the joint consent of both the husband and the wife, signifying their shared decision that they can no longer live together and wish to end the marital bond.Mutual divorce As per Indian law, mutual divorce also known as divorce by mutual consent,is a legal process where a married couple jointly petitions the court for the dissolution of their marriage, based on their shared agreement that they can no longer live together and wish to end the marital relationship.Today’s rapidly evolving legal landscape, the mutual consent divorce procedure offers a practical and peaceful solution for couples seeking to end their marriage amicably.The conditions and legal procedures, which set the grounds for mutual divorce, may, thus, change depending on which personal law applies.
Legal perspectiveIndian family law provides for mutual consent divorce under personal laws governing Hindus, Christians, Parsis, and Muslims, as well as under the secular Special Marriage Act, 1954. Hindus, Buddhists, Sikhs, and Jains are governed by Section 13B of the Hindu Marriage Act, 1955. Christians can file under Section 10A of the Divorce Act, 1869, while Parsis follow Section 32B of the Parsi Marriage and Divorce Act, 1936. Muslim law allows for dissolution through mutual agreement in the form of Khula (initiated by the wife) and Mubarat (initiated by either spouse). For interfaith marriages under the Special Marriage Act, 1954, mutual consent divorce is provided under Section 28. Across these laws, the fundamental requirement is that the parties must have lived separately for a prescribed period and must have mutually agreed to the divorce.
Condition for mutual divorce The conditions for mutual divorce in India are substantially similar across different personal laws, primarily the Hindu Marriage Act, 1955 (Section 13B) and the Special Marriage Act, 1954 (Section 28).
*Mutual Consent:This is the paramount condition. Both the husband and wife must willingly and freely consent to the dissolution of their marriage. The consent must not be obtained through coercion, fraud, or undue influence. Both parties must jointly present a petition to the District Court or Family Court seeking a decree of divorce.
*Living Separately: The couple must have been living separately for a continuous period of one year or more immediately preceding the presentation of the divorce petition.”Living separately” implies a cessation of marital obligations and cohabitation. It doesn’t necessarily mean residing in different homes, but rather not living as husband and wife.
*Procedural conditionsFirst Motion: After filing the joint petition, both parties must appear before the court, and the court records their statements to verify their mutual consent.Cooling-Off Period:Both the Hindu Marriage Act and the Special Marriage Act stipulate a mandatory cooling-off period. Initially, under both acts, this period was six months from the date of the first motion.The purpose of this period is to provide the couple with an opportunity to reconsider their decision and explore reconciliation.Importantly, the Supreme Court of India has, in several instances, used its inherent powers under Article 142 of the Constitution to waive this cooling-off period under specific circumstances where there is no possibility of reconciliation and prolonging the process would cause undue hardship. However, this is not a routine waiver and depends on the facts of each case.
*Second Motion: After the expiry of the cooling-off period (and within a period of eighteen months from the date of the presentation of the petition under the Special Marriage Act, this timeline is also generally followed under the Hindu Marriage Act), both parties must appear before the court again and make a second joint motion for divorce. If either party withdraws their consent at any time before the second motion and the passing of the divorce decree, the court cannot grant a divorce based on mutual consent.Court’s Satisfaction
* The court, after hearing both parties and making any necessary inquiries, must be satisfied that:The marriage was solemnized.The averments in the petition are true. The consent of both parties is free and not obtained by force, fraud, or undueinfluence.There is no collusion between the parties.In summary, to obtain a mutual divorce in India, the couple must jointly agree to the divorce, have lived separately for at least a year, state their inability to live together, and follow the prescribed legal procedure, including appearing in court for both the initial petition and the final decree, with the possibility of a cooling-off period unless waived by the court under exceptional circumstances.
*Rising of mutual divorce in IndiaDivorce is becoming a growing concern in India, a country historically known for its strong family values. In recent years, divorce rates have seen a significant rise. The rising divorce rate, divorce still carries a significant social stigma in India. Many individuals choose to remain in unhappy marriages rather than pursue divorce due to fear of judgment from society. This cultural reluctance often leads to underreporting, especially in rural areas.The rising divorce rate in India is influenced by various social, economic, and cultural factors. As traditional norms evolve, modern challenges such as financial independence, changing gender roles, and shifting societal expectations play a significant role in the increasing number of divorces.
*Role of mediation in mutual divorceMediation plays a crucial role in mutual divorce by providing a structured and neutral environment for both spouses to resolve their differences amicably. It facilitates open communication, reduces emotional conflict, and helps the couple negotiate important aspects of the divorce, such as property division, child custody, alimony, and other financial matters. By promoting mutual understanding and cooperation, mediation allows the parties to reach a fair and voluntary agreement, often saving time, legal expenses, and emotional stress associated with litigation. In mutual divorce cases, mediation not only streamlines the legal process but also supports a more respectful and constructive separation, especially when children are involved.
*Rights of Women Under Mutual divorce In India, even in a mutual divorce, women retain certain rights to ensure their financial security and well-being, as well as the well-being of any children. These rights are primarily related to alimony/maintenance, property, and child custody. It’s crucial to understand that while mutual consent implies agreement on the divorce itself, the terms of separation regarding these aspects still need to be fair and just.Maintenance and alimony, both come under the rights of a woman for financial support purposes. The conditions where a woman is not able to maintain herself can claim for the financial support from the husband. This financial support can be provided in particularly scheduled payments (maintenance) or the amount can be given in lump sum amount (alimony).
The rule will be a little different when the marriage has taken place under the Special Marriage Act 1954, i.e. it is the wife only who can claim the maintenance. But when the couple has solemnized the marriage under the Hindu Marriage Act, 1955, the court will decide the seeker of alimony or alimony after scrutinizing the living conditions of both the spouses. The husband can also file the petition for maintenance when he is not competent enough to fulfill his basic needs. And the court will grant the order according to the status and earnings of both the parties. And while providing the maintenance to wife, the court will examine remunerations, assets, other sorts of incomes and also the wife’s income
Conclusion: The divorce through mutual consent ignores the inherent bias and does not recognize that there is one advantages and other disadvantages among the two spouses and courts do not judicially examine the veracity of the whole procedure.Mutual consent divorce stands out as the optimal choice for couples in India seeking a dignified and efficient separation. Its benefits, including reduced emotional strain, cost-effectiveness, faster resolution, and privacy, make it a preferred option over contested divorce.
