Mutual consent divorce under Indian family law

The marriage itself decides the statute. A marriage solemnised under the Hindu Marriage Act is dissolved under Section 13B of that Act. A marriage registered under the Special Marriage Act is dissolved under Section 28 of that Act. A Christian marriage is dissolved under Section 10A of the Divorce Act, 1869.

The petition is filed in the district court, and in a Family Court where one has been established under Section 3 of the Family Courts Act. Section 7 gives the Family Court jurisdiction over dissolution of marriage, maintenance, guardianship and custody or access to a minor. The petition records where the marriage took place, where each spouse lives, and where they last lived together, because those facts determine which court can hear it.

Under Section 13B, the husband and wife present a joint petition to the district court on the ground that they have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed to dissolve the marriage. Section 28 of the Special Marriage Act uses the same one-year period. Section 10A of the Divorce Act requires two years of living separately.

The petition states the date of the marriage, the date from which the parties have lived separately, the terms they have agreed, and that the consent is free. Both parties sign it. The statute uses the phrase living separately. In Sureshta Devi v. Om Prakash, the Supreme Court held that it means not living as husband and wife, not living at different addresses. Parties under the same roof can satisfy the test if they have stopped living as a couple. The petition should set out the dates and the reason the parties stopped living as a couple.

The first motion is usually a short hearing. The court records the statements of both parties and satisfies itself that the consent is genuine. If the court is not satisfied, it can refuse to proceed on the joint petition.

Section 13B(2) allows the second motion to be made not earlier than six months and not later than eighteen months after the first petition. Section 28 of the Special Marriage Act and Section 10A of the Divorce Act use the same window. If the petition has not been withdrawn, the court hears the parties again and may pass a decree dissolving the marriage.

The six-month period is a cooling-off period. In practice, the court lists the second motion after the six-month mark and within the eighteen-month window. The parties can ask the court to take up the second motion earlier, but the request has to be supported by reasons.

In Amardeep Singh v. Harveen Kaur, the Supreme Court held that the six-month period is directory and not mandatory. It can be waived in exceptional situations, including where the proceedings have remained pending for a long time and the court is satisfied that the marriage cannot be saved. In Shilpa Sailesh v. Varun Sreenivasan, the Court relied on Amardeep Singh and repeated that the period can be waived in such cases.

Either spouse can withdraw consent at any stage before the decree is passed. Sureshta Devi v. Om Prakash held that mutual consent must continue until the decree, so a spouse who withdraws before that date prevents a decree on the joint petition. Hitesh Bhatnagar v. Deepa Bhatnagar applied the same rule where consent was withdrawn before the second motion.

The reason for withdrawal is not a condition in the statute. Once consent goes, the court cannot pass the decree on the joint petition. The other spouse may then pursue a contested petition on a statutory ground, or the parties may negotiate again.

The risk of withdrawal is one reason to settle the money, property and custody terms before the first motion. A written settlement signed by both parties gives the court a clear record of what was agreed, even though it cannot prevent a later change of mind.

A mutual consent petition is usually accompanied by a settlement or consent terms. The document should deal with money, property and children. It should say whether a lump sum is in addition to or in place of monthly maintenance, and how the parties will deal with joint loans, bank accounts and the matrimonial home.

For children, the terms should record custody, visitation, school arrangements and the sharing of expenses. The arrangement is not final for all time. A later application can ask the court to change it if the child's welfare requires a different order.

A divorced wife who has not remarried can still apply for maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The section defines wife to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. An application for interim maintenance is to be disposed of within sixty days as far as possible. The settlement should therefore say how it deals with that statutory right.

Property transferred under the settlement needs its own documents. A flat, land or shares should be transferred by a registered instrument where the law requires registration, and the settlement should set a date for the transfer. The petition can record the terms, but the transfer itself is a separate step.

The decree dissolves the marriage. A certified copy is needed for later applications and for changing records that depend on marital status. The parties should keep the certified copy with the settlement and the court record.

If the court declines to pass the decree, or a party withdraws, the file should be reviewed before the next step. A fresh joint petition may be possible after the statutory separation period continues, or the spouse who wants the divorce may file a contested petition.

The chambers review the petition, the settlement and the supporting records before filing. The review covers the choice of statute, the separation dates, the court's jurisdiction and the terms that the parties intend to record.