Under the Hindu Marriage Act, 1955 both the husband and the wife can dissolve their marriage by a decree of divorce on one or more grounds, enumerated under Section 13 of the Act.
Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provides for divorce by mutual consent.
Places for filing of the divorce petition:
1. The Court can be at the place where the couple seeking divorce last lived.
2. The Court can be at the place where the marriage was solemnized.
3. The Court can be at the place where the wife is presently residing.
Procedure involved in case of divorce by mutual consent:
1. Petition to file for divorce:
A joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both the spouses on the ground stating that they have not been able to live together and have mutually agreed to dissolve their marriage or they have been living separately for more than one year or more. The petition should be signed by both the parties.
2. Appearance before the Court and inspection of the petition:
After the filing of the petition both the parties will have to appear before the family court. The parties would present their respective counsels. The Court would then critically observe the petition and the documents presented in the Court. The court may attempt to bring reconciliation between the spouses, if not possible the matter would proceed for further follow-ups.
3. Order for recording the statements on Oath:
After the petition is scrutinized by the court and it is satisfied, it may order the party's statements to be recorded on oath.
4. First Motion is passed and a period of 6 months is given before Second Motion:
Once the statements are recorded, an order of first motion is passed by the Court and after this, a period of six months is given to both the parties, before they file for second motion.
Maximum period for filing the second motion is 18 months from the date of presentation of the divorce petition.
5. Second Motion and Final Hearing of the petition:
This includes parties appearing and recording of statements before the Family Court. If the parties have genuinely settled their difference including alimony, custody of the child if any or any other pending issues between the parties, or if the court is of the opinion that the waiting period would add on to the sufferings, the period of six months can be waived off.
6. Decree of Divorce:
In a mutual divorce, both the parties must give consent and there shall not be any differences left in the matters related to the contentions regarding alimony, custody of child, maintenance of property, etc. There needs to be a complete agreement between the spouses for the final decision on dissolution of the marriage. If the Court is satisfied after hearing the parties that the allegations in the petition are true and there is no possibility of reconciliation and cohabitation, it can pass of divorce declaring the marriage to be dissolved.
The divorce becomes final once the decree of divorce has been passed by the Court.
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