HOW TO GET CONSENSUAL DIVORCE AND ITS PROCEDURE (STEP

BY STEP)

What is consensual divorce or divorce by mutual consent?

Mutual consent basically means that both the parties agree for a peaceful separation. Under the
Hindu Marriage Act, 1955, both spouses are provided the right to dissolve the
marriage by a decree of divorce with the help of a mutual divorce lawyer on the
grounds as enumerated in Section 13B:

1) Both the parties to marriage have not been able to live together.
2) Living separately for a minimum period of one year.
3) They have mutually agreed for dissolution of the marriage or mutual divorce.

How to reach a consensus?

Mutual Consent Divorce may sound a simple way of dissolving the marriage but two important
aspects on which husband & wife reach a consensus have to be kept in mind:

1) Alimony - As per Law there is no minimum or maximum limit of maintenance. It could be

any figure or no figure.
2) Child Custody - This has to be worked out effectively between the parties. It can be shared
or joint or exclusive depending upon the understanding of the spouses.

Where to file the divorce petition?

The divorce petition can be filed in the family court of the district where both the spouses lived
together for the last time, which was their matrimonial home.

How to file divorce petition by mutual consent and what happens in the court?

The divorce petition is in the form of an affidavit, this is to be submitted to the family court.
After filing the petition and recording of the statements of both the parties, the court generally
adjourns the matter for a minimum period of 6 months.

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After six months, the parties have to present again in the court for making a second motion and
confirming the mutual consent filed earlier. Only after this, a decree of the divorce is granted by
the court.

Can a party withdraw the mutual consent petition after filing in the court?

During the period of 6 months when the petition is pending in the court, any partner is entitled to
withdraw the mutual consent by filing another application in the court stating the reason he/she
do not seek the divorce by mutual consent.

Under such circumstances, the court grants no decree of divorce on grounds of mutual consent.

What are the options available with other partner under such circumstances?

The only other option available with other partner is to file a normal petition for divorce under
the provisions of the Section 13 of the Hindu Marriage Act, 1950 which includes grounds like
cruelty; desertion; adultery; the other spouse having an unsound mind; conversion of religion by
the other spouse; venereal disease; a spouse renouncing the world or being missing for a period
of more than 7 years.

Can the spouse consent for remarriage without getting divorce from existing partner?

Remarriage without getting a divorce from previous marriage is a punishable offence with
imprisonment extending upto seven years.

When the can the divorced parties remarry?

Depending on the nature of decree, the parties can remarry after the expiry of three months from
the date of decree if notice of appeal is not received by the person remarrying from the other
person.

How much getting divorce by mutual consent may cost?

If an advocate is involved, it will be somewhere between Rs 25,000 to Rs 75,000 or some sites

are providing free or low cost documentation if you resort to this method, the costs may fall
exponential numbers.

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How much time is consumed in the whole process from filing the petition in the court till
the passing of the decree by the court?

Normally, it takes in between six months to one year from the date of filing of the petition but it
depends more on case to case basis.

Are there different laws of divorce for different religion in India?

Just like the marriage laws, the divorce laws are different for different religions in India. The
Hindu Marriage Act, 1955 covers divorce laws for Hindus (including Sikhs, Jains and Buddhists)
which has been discussed above. For Muslim community, the personal laws of divorce or talaq
are followed; Dissolution of Marriage Act 1939 and the Muslim Women (Protection of Rights on
Divorce) Act, 1986 are also applicable. And the secular law - Special Marriage Act, 1954
governs the inter-religious marriages.

Mutual Divorce under the Muslim Law:

There are two types of divorce under Muslim law, i.e. judicial and extra-judicial. Mutual Divorce
falls under the extra-judicial category. This is based on the notion that since divorce is an act of
the parties, there is no need of intervention by the court. The mutual divorce is also of two types:

1) Khula: This is said to be an agreement between the spouses to dissolve the marriage in lieu
of a part of the woman’s property as compensation to the husband. Actual delivery is not
compulsory for the validity of the divorce even though consideration is an important aspect
of the Khula divorce. Once the husband gives his consent, the divorce becomes irrevocable
and the husband cannot revoke the said khula even if the consideration has not been paid.
2) Mubarat: Under this type of divorce, it is imperative that both the husband and wife must
desire divorce, and the proposal can commence from either side. Once such offer is made,
then the other side have to accept it and once accepted, the divorce becomes irrevocable.

There are some variations seen for Sunnis and Shias under this type of divorce. For Sunnis, once
the parties enter into Mubarat, the rights and obligations of the parties end with it. For Shias,
there is requirement of a proper form, i.e. the word Mubarat is required to be followed by the
word Talaq for the divorce to commence and these words must be enunciated in Arabic.

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Moreover, the intention to dissolve the marriage shall be expressed in clear and unambiguous
words.

Mutual Divorce under Christian Law

In India, Divorce Act 1869, governs the divorce for Christian community. Dissolution of
marriage by way of mutual consent is an option under Section 10A of the Act. The petition for
mutual divorce can be filed by any of the parties in the District Court with appropriate
jurisdiction.

The petition can be filed on the grounds of:

1) The parties have been living separately for more than a year.
2) It is not possible to cohabit together.
3) The decision to end the marriage is a mutual decision of both the parties.

The petition can be withdrawn after 6 months from the date of presentation of the petition, but
before a lapse of 18 months from such date.

Mutual Divorce under Parsi Law:

Divorce for Parsi community is governed by the Parsi Marriage and Divorce Act passed in1936.
Section 32B of this Act lays down the rules for mutual divorce. There are some conditions
required to be fulfilled to be able to get a mutual divorce decree:

1) It is mandatory to mention the ground in the petition and that they have been living
separately for one year or more.
2) They have not been able to live together, and
3) The petition should include that they have consensually reached this decision.

A suit for mutual divorce can be filed only after the lapse of one year from the date of marriage.
Once the Court is satisfied with its inquiry, the marriage had been dissolved with the consent of
both the parties and they are present for the mutual divorce without any force or fraud, it would
pass a decree of mutual divorce.