Mutual Consent vs Contested Divorce: Which Is A Better Way Out?

The Indian divorce laws for ending a marriage legally classify divorce as a mutual consent divorce and contested divorce, applicable over a divorcing couple in accordance with their circumstances and consent of the spouses to opt for a divorce. Here’s a brief guide for a better understanding of the key features of the kinds of divorce in India:

What is a Mutual Consent Divorce?

A mutual consent divorce can be opted for when the husband and wife both consent to put an end to their relationship and lay down the conditions governing their divorce without having the need to fight a battle in court. Another name of divorce by mutual consent is uncontested divorce as the terms of divorce and formalities like maintenance/alimony, child custody and division of property are decided by the husband and wife are finalised without the need to contest them before a court of law.

What is a Contested Divorce?

A contested divorce is the second kind of divorce which can be opted for when one spouse i.e. the husband or wife wishes to file a divorce against the other and the latter does not consent to this divorce. As the name suggests, the divorce petition is contested by the non-consenting spouse and is, therefore, a one-sided divorce.

Conditions For Filing A Divorce

The primary condition that must be fulfilled to be able to file a mutual consent is that it must be at least 1 year to the marriage and the spouses must be living separately. In case of a contested divorce, however, a leave petition can be filed to waive off this condition if the marriage is beyond repair or for any other reason deemed fit by the court.

Kind Of Divorce Petition

In case of a mutual divorce, a joint divorce petition is filed by the husband and wife, whereas in a contested divorce, a one-sided petition is filed by one spouse against the other.

Court Proceedings In A Divorce Matter

In case of a mutual consent divorce, the divorce proceedings include:

• Filing of a divorce petition in form of First Motion
• Cooling of period
• Filing of Second Motion
• Decree of Divorce

In case of a contested divorce, the divorce proceedings include:

• Filing of divorce petition
• Court notice to the other spouse
• Recording of statements
• Examination and cross-examination of witnesses and evidence.
• Divorce decree by the court

Grounds For Divorce

In case of a mutual consent divorce, it is not necessary to present a ground for divorce except the fact that the relationship between the spouses is beyond repair and the marriage needs to end to put an end to their suffering. However, in case of contested divorce in India, grounds like adultery by the spouse, mental or physical cruelty, desertion, conversion of religion, renunciation of the world, mental illness, venereal disease of communicable form, the spouse is not heard being alive for 7 years, etc. need to be included in the divorce petition, on the basis of which the divorce is then contested.

Cooling Off Period

A cooling off period of 6 months is granted to the couple so that they can reconsider their decision to end their marriage and reconcile in case of a mutual divorce in India. However, there is no concept of a cooling off period in case a contested divorce.

Length Of Divorce Proceedings

In case of a mutual consent divorce, a divorce decree is usually granted by the court in 8-10 months, but a contested divorce may go on for a couple of years on end.

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