clat taker 10 April 2021

Mutual consent divorce

My wife and I have been living separately for 6 months now. We want to file mutual consent divorce but we have been informed that to even file the petition for mutual consent divorce we would have to have lived separately for one year before presenting the petition and so we have to wait 6 more months. So, I checked the act and it is written that one year living separately is necessary. Is there any way that we can overcome this? So that we can file the petition in the next 10-15 days?

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3 Replies

Sankaranarayanan (Advocate) 13 April 2021

You approach local Divorce lawyer and act as per the suggestion

Nirali Nayak 17 June 2021

Hello, greetings of the day.
To solve your query I am providing you with the requirements of mutual divorce.
The parties must have been living separately for a period of at least one year.
They have not been able to live together.
They need to have mutually agreed that marriage should be resolved.
The Supreme Court of India, in the case of Sureshta Devi v Om Prakash, 1992, has ruled out “that the expression living separately connotes not living together like husband and wife. It gives no reference to the place of living. The parties may live under same roof by way of circumstances, and yet they might not be living and behaving as husband and wife. The important point here is that they have no desire to perform marital obligations and with that they have been living separately for a period of at least one year immediately preceding the presentation of the petition.” It has also been ruled out by Supreme Court in various cases that the expression “have been living separately’ does not specifically means physical separation or living separately and apart what is material is that no marital obligations are performed between the spouses and they are not living together as husband and wife. After establishing the first requirement that you have been living separately for one year or more, the second point that has to be established is that you and your spouse can no longer live together. Thus if you can prove all these points in the court, you can get a mutual divorce.

Hope this answered your question
Regards
Nirali Nayak
Law Student

Sekar (Self) 22 June 2021

@ Nirali Nayak - A husband and wife are living under the same roof for more than 5 years without any intimate relationship and proper communication. Will this be enough for them to go for mutual consent divorce? or Should they live separately for one year and then approach for mutual consent divorce?

In case, wife does not agree for MCD, can the the husband leave the house and file for contested divorce? What will be repercussions if the husband leaves the house and stay elsewhere?