Suparna Ji thankyou for Writing back.
Mutual Divorce as mentioned under section 13 B of the Hindu Marriage Act ,1955 is a type of divorce where both you and and wife have to file though following conditions must be met with-:
(i) that you and your wife have been living separately for a period of one year or more. Please read Suresh Devi v. Om prakash, AIR 1992 SC 1904 For further understanding.
(ii) That you are unable to live together.
(iii) And that both you and your wife have mutually agreed that the marriage has totally collapsed. Hence marriage should be dissolved.
For your convenience, I have tried you explain the procedure in the following steps.
Step 1: Petition to file for divorce
Firstly, 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 the marriage or they have been living separately for a period of one year or more.
This petition will, then, be signed by both the parties.
Step 2: Appearing before Court and inspection of the petition
Both the parties will have to appear before the family court after the filing of the petition.
The parties would present their respective counsels/lawyers.
The court would critically observe the petition along with all the documents presented in the court.
The court may even attempt to bring reconciliation between the spouses, however, if this is not possible, the matter proceeds for further follow-ups.
Step 3: Passing orders for a recording of statements on oath
After the petition is scrutinized by the court and it satisfies, it may order the party's statements to be recorded on oath.
Step 4: First Motion is passed and a period of 6 months is given before the Second Motion
Once the statements are recorded, an order on the first motion is passed by the court.
After this, a six months period is given to both the parties to a divorce, before they can file the second motion.
The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.
Step 5: Second Motion and the Final Hearing of petition
Once the parties have decided to go further with the proceedings and appear for the second motion, they can proceed with the final hearings.
This includes parties appearing and recording of statements before the Family Court.
Recently, the Supreme Court has held that the 6 months period given to the parties can be waived off at the decision of the court.
Therefore, the parties who have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties, this six months it can be waived off.
Even if the court is of the opinion that the waiting period will only extend their sufferings, the six months can be waived off in this case also.
Step 6: Decree of Divorce:
In a mutual divorce, both parties must have given consent and there shall not be any differences left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc.
Thus, there needs to be complete agreement between the spouses for the final decision on the dissolution of marriage.
feel free to write to us in case of further queries.