Both the husband and wife have the right under the Hindu Marriage Act of 1955 to have their marriage dissolved by a decree of divorce on more than one of the grounds enumerated in Section 13. Divorce by mutual consent is also allowed under Section 28 of the Special Marriage Act of 1954 and Section 10A of the Divorce Act of 1869.

In this article, a Navi Mumbai based advocate from “ParthaSaarathi” which is one of the best legal consultancy and dispute resolution firm, will discuss about how you can file for a mutual divorce.

Section 13B of the Hindu Marriage Act stipulates the following requirements:

• For a year or more, the husband and wife have been living
• Their inability to live
• And that both the husband and the wife have accepted that the marriage has completely As a result, the marriage should be dissolved. A Divorce by Mutual Consent may be filed under these circumstances.

The filing of a divorce petition, according to the Indian legal system, is the first step in the divorce process.

Where should a divorce petition be filed:

1. The court could be in the same place where the couple seeking divorce previously
2. The court may be the place of the marriage
3. The court may be the one where the wife is actually living.

The entire divorce procedure in India starts with the filing of a divorce petition by the parties involved in the divorce process, which is then served on the other party. If you and your partner are having problems and have agreed to legally split, you can file a petition for a “mutual divorce” under the Hindu Marriage Act, 1955. You can even file for divorce if the other party refuses to do so; this is known as a ‘Contested Divorce.’

In the event of a mutual divorce, there is a step-by-step process to follow.

Step 1: File a divorce petition.

To begin, both parties must file a joint petition for dissolution of marriage and a declaration of divorce with the family court, alleging that they are unable to live together and have jointly decided to end the marriage or that they have been living separately for a period of one year or more. After that, both parties will sign the petition.

Step 2: Making an appearance in court and inspecting the petition.

Following the filing of the case, all parties must testify in front of the family court. The parties must each present their own legal counsel. The petition, as well as all other documents submitted in court, will be scrutinized by the court. The court may also try to get the spouses back together; but, if this is not practicable, the case may be continued for further proceedings.

Step 3: Issuing instructions for the taking of oath statements. 

The court may require the party’s statements to be documented on oath after it has scrutinized the petition and found it to be satisfactory.

Step 4: Imposing waiting period.

 The First Motion is approved, and a six-month waiting period is imposed before the Second Motion is considered. The court issues an order on the first motion after the statements have been recorded. After that, all parties to a divorce are granted a six-month period before filing the second motion. The maximum time limit for filing a second motion is 18 months from the date of the divorce petition’s presentation in family court.

Phase 5: Second Motion and Petition Final Hearing.

The final hearings will begin after the parties have agreed to continue with the proceedings and appear for the second motion. This involves parties standing in front of the Family Court and having their statements recorded. The Supreme Court recently ruled that the 6 month span allotted to the parties may be waived at the court’s discretion. As a result, whether the parties have truly resolved their disputes, including alimony, child custody, or any other unresolved conflicts between them, this six-month period will be waived. And if the court believes the waiting period will only prolong their pain, the six-month period may be waived in this situation as well.

Phase 6: Divorce Decree.

In a mutual divorce, all parties must have given their consent, and there must be no residual discrepancies in the areas of alimony, child custody, care, land, and so on. As a result, for the final decision on the dissolution of marriage, there must be full agreement between the partners. After hearing the parties, the court will issue a divorce decree declaring the marriage dissolved if the court is convinced that the claims in the petition are valid and that there is no hope of reconciliation or cohabitation. When the court issues a divorce order, the divorce is deemed final.