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Ramesh Jana (Service)     28 September 2012

Divorce on mutual consent: process and queries

Hello,

1) What are the steps for a divorce in mutual consent in India (for a marriage as per Hindu marriage act) and what are the requisites (i.e, whether the couple have to stay apart for some time etc)? I mean starting from applying for it till the final court order.

2) If there is no contest then what is the minimum time for the procedure?

3) Is alimony to the wife mandatory? Or if the wife declares that she does not want it then whether the court can still order the husband to give such 'maintenance'?

4) Once the final court order comes in favour of the divorce, can the husband/wife file a case danying the divorce or demanding for alimony? If yes does it stand at all?

5) If both the husband and wife agree not to divulge the personal issues in front of the court and if both say "we are feeling incompatible to each other because of certain issues" and if their families also agree to that, is it necessary to give a detailed descripttion regarding the incompatibility to the court?

 

Regards,

R. Jana



 37 Replies

Sanjeev (Lawyer)     28 September 2012

In mutual divorce a joint petition is prepared stating the facts when the marriage took place and from when the husband wife are living seperately and similarly a brief reason in general that why they are not living together like differences etc--no personal facts are disclosed.

on the date the first motion both husband and wife need to sign in court the joint petition and then get a six months future date and once they present and sign on second date the decree of divorce is granted. 

 

Alimony is not granted by court in mutual divorce its mutual as you and your wife decide.

 

Minimum time is six months

The divorce decree in mutual  consent is not challengable.

if the point regarding no future claims is added in the petition that will prevent any future claims by any party.

adv. rajeev ( rajoo ) (practicing advocate)     28 September 2012

Both will have to file a joint petition, but seperate advocates must file their vakalat.  It is not necessary to live apart. There will be reconciliation stage so you both will have to wait for 6 months. If wife is not interested in alimony court wont award any maintenance, but court some times asks what arrangements have been made to wife. You need not to write in detail in the petition.

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     28 September 2012

No details are not required. You just have to tell the court that your differences have grown irreconciliable and hence you seek a divorce. Maintenance/Alimony are not mandatory from either side. There have been cases where maintenance lump sum amoutns have been taqken and parties have backed out and later filed maintenance cases. There have been cases where even after divorce is finalised and maintenance full and final paid - wives have filled and actually got maintenance. In this regard read this article that I wrote some while back :

 

Getting a Mutual Consent Divorce !

 

“A happy marriage is a harbour in the tempest of life, an unhappy marriage is a tempest in the harbour of life.”

 

Divorces are tough ! But so are marriages that take a toll on your physical/mental well being, divorce is no more a taboo, and people are increasingly accepting the harsh realities of their relationships, and are taking decisions so as to get into better relationships.

 

In India divorce if contested by the other party, can be got only by proof of cruelty (physical or mental), desertion (unjustified separation of 2 years), adultery (s*xual intercourse outside wedlock), insanity etc.

 

Since the judicial system is fraught with delays and other systemic problems, a contested divorce can easily take you years in the Court.

 

A divorce by mutual consent on the other hand, is much more pragmatic. It is based on the idea that when two persons agree to get into a relationship out of their free consent, they should have the liberty to end it as well when it turns sour.

 

Now cutting to the chase, here is what you need for a mutual consent divorce:-

 

Before going to the Court.

 

i) A separation of one year before filing the case please note that actual physical separation is not required, even if both parties are sleeping in the same bedroom they can be said to be seperated for the purposes of mutual consent, if they are not living together as husband and wife;

 

ii) A flawlessly drafted MoU (Memorandum of Understanding) that settles the terms on which you part away, people don’t understand the importance of this, this is extremely important so as to end the matters with a finality once and for all, there are no loose ends and make sure there is no litigation in future;

 

Once the above is done – you have to get drafted the Divorce petition that encapsulates the contents of your earlier MoU.

 

After Court

 

When you file your divorce by mutual consent petition – it comes up for hearing and your statements are recorded, then the court gives you a period of 6 months (basically to think over your decision) after which,  on recording of final statements divorce decree is passed.

 

Monetary Settlement/Maintenance/Alimony/Child Custody issues.

 

A Mutual Consent petition gives you the flexibility to come to your own terms with respect to the issue. If a full and final settlement is reached – the money can be paid before the court at the time of final hearing.

 

In all this procedure enables couples to part away amicably on a good note, without ruinous litigation, and without much expense.

 

This article explains all you need to know about getting a divorce by mutual consent.

 

The Author is a Divorce Lawyer based in Delhi, practising in the Supreme Court of India and can be reached at bharat.law06@gmail.com

4 Like

Tajobsindia (Senior Partner )     28 September 2012

1. First step is to hire an advocate (s/he can be common one for both parties).
2. There should be separation (bed and board and can be while living under same home/roof) from last 1 year. Simple pleading such as "parties having irreconcilable differences hence leading to part from each others" is more than enough to pave way for MCD and an advcoate can very well take care of such paras.
3. One needs other than an advocate; court fees + address proof of respective parties + 1 pp each of parties + marriage photo or marriage registration or marriage certificate of parties + petition for first and second motion prepared by an advocate as well as an MoU drafted and then approved by both parties as to its terms and conditions they are mutually agreeing upon to end their marital relationships.
4. They should have jointly executed between them an MoU clarifying (as an agreeing or deciding themselves) the various questions that you asked to us.
5. Settlement is one time which is mutually agreed between parties and presented in MoU annexing with petition. Lots of cases there is no settlement amount also as somehow parties wants to part from each other. Court does not come into picture on settlement amount. There was a case of dr.’s couple where husband paid on record Re. 1/- and wife accepted just that as settlement under MCD !
6. The minimum cooling period is 6 months for ordinary litigants after allowing first motion and then appearing for second motion. If litigants are desperate and have good monetary backups then they can approach Hon’ble SC to waive off 6 months cooling period and for the same see today’s detailed discussion in one other thread post that I replied which is self explanatory.
7. After filing first motion Court conducts basic enquiry to parties such as; are you really decided to part company / why donot you stay for the sake of children / are you happy with settlement amounts etc. and then goes to record statement of parties and makes an order that allows first motion under MCD, a very simple approach court adopts. At second motion roughly same question and extra once such as; since when both are living separate and is their any force or fraud between you two to take divorce and have you received the settlement amount and are consent given voluntarily are enquired and then goes on to record statement of parties and makes an Judgment followed by then and there Decree Sheet prepared and given free of Cost to parties. 
8. Closed MCD can be challenged under fraud and duress grounds at any time even post 90 days appeal period with condonation of delay. It can also be challenged at the time if signature of presiding Judge not affixed just after orally announcing MCD of parties. Also one party can withdraw consent anytime between 6 months and before 18 months too. In once case SC allowed consent withdrawl of one party even after 2 years.
9. Post MCD it can be opened up on larger public interest policies inspit earlier giving up civil / criminal maintenence right sby wife too such as ex wife remains un-married and finding it difficult to sustain herself monetarily, on grounds of rights of residence unless she has specifically given that up by her statement during MCD proceedings, she may need medical attention being living a life that of un-married, she may need to look after her widow mother and cost of liv9ing / inflation and also under change of circumstances of children whom she is custody holder etc. Lots of Courts have opened closed MCD cases and it is not that such re-openning are unheard of but needs solid good grounds and may or may not happen in presented facts but informed in generic here.

You have both sides of picture shown in above bullets r/w other repliers replies to chalk out first a chamber sitting with an advocate to broaden on them and still left with questions you are welcome back but take your time to understand, research reading past similar questions in Family Law forum, grasp them and understand what all are being said by all repliers to your opened thread.




1 Like

Nina Rakheja (unhappily married)     28 September 2012

Bharat nice to see you after long..your reply is awesome unlike the above person..


(Guest)

Hey Tajobsindia,

Regarding your point 7. I was curious to know whether in MCD a judge has any role to play?

If the couple has approached with irreconceivable breakdown, even then a judge will try to save the marriage? May be as

a part of his duty? or to save the marriage as a noble institution.

 

My question may sound irrelevant to many but is improtant to me so please reply with best of your knowledge?

Originally posted by : Tajobsindia

1. First step is to hire an advocate (s/he can be common one for both parties).
2. There should be separation (bed and board and can be while living under same home/roof) from last 1 year. Simple pleading such as "parties having irreconcilable differences hence leading to part from each others" is more than enough to pave way for MCD and an advcoate can very well take care of such paras.
3. One needs other than an advocate; court fees + address proof of respective parties + 1 pp each of parties + marriage photo or marriage registration or marriage certificate of parties + petition for first and second motion prepared by an advocate as well as an MoU drafted and then approved by both parties as to its terms and conditions they are mutually agreeing upon to end their marital relationships.
4. They should have jointly executed between them an MoU clarifying (as an agreeing or deciding themselves) the various questions that you asked to us.
5. Settlement is one time which is mutually agreed between parties and presented in MoU annexing with petition. Lots of cases there is no settlement amount also as somehow parties wants to part from each other. Court does not come into picture on settlement amount. There was a case of dr.’s couple where husband paid on record Re. 1/- and wife accepted just that as settlement under MCD !
6. The minimum cooling period is 6 months for ordinary litigants after allowing first motion and then appearing for second motion. If litigants are desperate and have good monetary backups then they can approach Hon’ble SC to waive off 6 months cooling period and for the same see today’s detailed discussion in one other thread post that I replied which is self explanatory.
7. After filing first motion Court conducts basic enquiry to parties such as; are you really decided to part company / why donot you stay for the sake of children / are you happy with settlement amounts etc. and then goes to record statement of parties and makes an order that allows first motion under MCD, a very simple approach court adopts. At second motion roughly same question and extra once such as; since when both are living separate and is their any force or fraud between you two to take divorce and have you received the settlement amount and are consent given voluntarily are enquired and then goes on to record statement of parties and makes an Judgment followed by then and there Decree Sheet prepared and given free of Cost to parties. 
8. Closed MCD can be challenged under fraud and duress grounds at any time even post 90 days appeal period with condonation of delay. It can also be challenged at the time if signature of presiding Judge not affixed just after orally announcing MCD of parties. Also one party can withdraw consent anytime between 6 months and before 18 months too. In once case SC allowed consent withdrawl of one party even after 2 years.
9. Post MCD it can be opened up on larger public interest policies inspit earlier giving up civil / criminal maintenence right sby wife too such as ex wife remains un-married and finding it difficult to sustain herself monetarily, on grounds of rights of residence unless she has specifically given that up by her statement during MCD proceedings, she may need medical attention being living a life that of un-married, she may need to look after her widow mother and cost of liv9ing / inflation and also under change of circumstances of children whom she is custody holder etc. Lots of Courts have opened closed MCD cases and it is not that such re-openning are unheard of but needs solid good grounds and may or may not happen in presented facts but informed in generic here.

You have both sides of picture shown in above bullets r/w other repliers replies to chalk out first a chamber sitting with an advocate to broaden on them and still left with questions you are welcome back but take your time to understand, research reading past similar questions in Family Law forum, grasp them and understand what all are being said by all repliers to your opened thread.




 

Amit Singh (Owner)     23 December 2012

Mutual Divorce is most simple and easy process if both the husband and wife are into positive agreement to put their papers into court.  Total time required is six months from the date of filling papers, but one needs a good lawyer to handle the entire process as there are certain legal and technical requirements and procedures like counselling and verifications.  one needs to know that there has to be one year of seperation before divorce filing and marriage has also to be over one year and above.   Issues of alimony and maintenance are needed to be sorted amongst the parties before entering the divorce papers at the family court.   For systematic divorce paper work in Mumbai you may contact Siddhartha Shah & associates on 9322286663 / 022 26111281 or on lawyersidd@gmail.com one of the leading divorce lawyers in Mumbai. I had very positive experience  and professional advisory from them in my issues.  The paper work has to be very clear and perfect as to avoid any negative conflicts.  hope my info helps.

ramanarayana gupta m r ( reitred bank executive)     20 April 2013

Sir,

In one case, the advocates of both the parties have suggested to go for contested divorce application first. Both the advocates it seems have decided to advise their respective clients that they would get the divorce within 1 to 2 months. I am astonished to hear this news. In this case both husband and wife are agreeable on mutual consent decree and they have also accepted this fact before the police also. 

Can any practicing advocates clarify this position?

Expect authoritative answer on this point to enlighten the parties concerned.

tarun (software engineer)     28 June 2013

Mutual Divorce means when both parties agree that they cannot live together and mutually agree to dissolve the marriage.

Where is such condition all aspcets such as Child custody, maintanence etc are all settled amicably and mentioned in the petition. Sign and greed by both parties.

there are in all 2 motions and a time gap of 6 months cooling period is included.

kindly not these 6 month period is provided for reconcilation if bot can come back together again or a final chance.

 You should read the following articles: Mutual divorce and Family laws in India

Milind Kasunde (Project head)     13 July 2013

Hi,

I would like to know any lowyer in pune for DMC case...

 

Thanks

c. shah... (Service)     13 July 2013

 STEP 1: Divorce Petition will be drafted which will include terms of settlement. Basically, Husband and Wife have to reach to understanding regarding maintenance issue. As per law, there is no minimum or maximum limit. It is basically about the understanding and consensus between the parties.

   STEP 2: This Mutual Consent Divorce Petition under section 13(B) in case of Hindu Marriage and under section 28 Divorce Ac1869 in case of Christian Marriage will be filed in the Court supported with affidavits.

   STEP 3: Matter will come up for hearing in the Court and generally parties have to be present before the Court and their statement is recorded in the Court.

   STEP 4: After recording of statements, First Motion will be passed.

   STEP 5: Thereafter, parties will be given time from six months to Eighteen Months to file the Petition for second motion

   STEP 6: Step 2 and 3 will be repeated 

   STEP 7: Court will grant second motion

   STEP 8: And immediately thereafter divorce decree will be asked to prepared

   STEP 9: With in a week, this divorce decree will be given to the parties or their advocate/s

Sunil (Business Analyst)     03 September 2013

Minimum 6months is needed to apply for divorce. The mutual  consent is not challangable. You may go through the following links to know more about the divorce procedure.

https://www.pathlegal.in/legal_services/divorce/divorceprocedureinindia.php

If you need any help on divorce matter please feel free to contact me .

Manjunath (Sr. Graphic Desinger)     03 September 2013

can you please elaborate What is MCD? and SC?

Manjunath (Sr. Graphic Desinger)     03 September 2013

I too have the same questions as below please answer. if it had answered kindly share the link

Originally posted by : Ramesh Jana


Hello,

1) What are the steps for a divorce in mutual consent in India (for a marriage as per Hindu marriage act) and what are the requisites (i.e, whether the couple have to stay apart for some time etc)? I mean starting from applying for it till the final court order.

2) If there is no contest then what is the minimum time for the procedure?

3) Is alimony to the wife mandatory? Or if the wife declares that she does not want it then whether the court can still order the husband to give such 'maintenance'?

4) Once the final court order comes in favour of the divorce, can the husband/wife file a case danying the divorce or demanding for alimony? If yes does it stand at all?

5) If both the husband and wife agree not to divulge the personal issues in front of the court and if both say "we are feeling incompatible to each other because of certain issues" and if their families also agree to that, is it necessary to give a detailed descripttttion regarding the incompatibility to the court?

 

Regards,

R. Jana

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