mutual consent divorce in absence of one party


my friend is seaparated since years.

she wants early divorce by mutaual consent.but her husband says far off in some other city and cnt come due to illness and work.

but he is ready to sign any type of required papers for mutual consent.

please guide and suggest.

 
Reply   
 
Advocate.

Dear Rupa Madam,


Your Friend could file her papers before the family forum at the place of the jurisdiction where she resides for obtaining divorce if she  desires. She may commence her paper work as regards preparation of papers needed to be filed before the family forum. You have not mentioned the fact that how long She has been married and under which laws her marriage has been registered.


   Now as regards your query pertaining to Mutual Consent Divorce, which can be only possible when her husband is ready and willing to file the petition by mutual understanding and his consent by deciding upon certain terms and conditions as agreed by him and your friend.

Divorce by Mutual Consent is one of the Valid Legal ways in which both the parties seeking divorce can file their papers and present them in the Matrimonial Forum. This is done with mutual understanding among themselves and their terms and conditions also can be laid down after arriving at final decisions. The parties seeking divorce Petition or make an application before the Matrimonial Forum for obtaining divorce.


The formalities and the procedures required under the Special Marriage Act, 1954 for obtaining divorce by mutual consent is as follows,



  1. Under Section 28 of the Special Marriage Act 1954, a Petition for divorce may be presented to the District Court or Family Forum by both the parties together on the ground that they have been living separately for a period of one year or more and that they have not been able to live together. And that they have mutually agreed that the marriage should be dissolved.

  2. On the presentation of the Petition made by both the parties the date of hearing is fixed after the compulsory period of six months. After which the Court shall, on being satisfied hearing the parties and making such inquiry as it thinks fit, that the marriage has been solemnized under the appropriate laws & Act and that the averments or the contents as stated in the Petition are true, then would pass a decree or an order declaring the marriage to be dissolved with effect from the date of the decree / Order.   Please wait for other senior members advice.

 
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she had arranged mismatch marriage in 1989. not registered anywhere.


did not persue divorce bcauze of only son's future.


now her son is 18 and agrees mother's decision.


she is staying separately since more than one year.


her only problem is that her husband is in some other city...ready to sign mutual consent papers but does not want to come to courts.

 
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medical practitioner &legal studies

ld mr shree in para 2 mentioned --enquiry and satisfactation of family court .these words are very important. court may ask questions to husband and that opportunity will not be there if he does not enter appreance in court.

 
Reply   
 

No need to worry.


 Decree of divorce by mutual consent is formal in nature.  Prepare a divorce petition by mutual consent and get it signed by the person who is living far away and also by the other spouse, who can personally appear in court and file it.  In the petition, one paragraph has to be specifically pleaded that the husband due to illness, cannot personally present and seek exemption for personal appearance.   If the court still does not satisfy, move an application seeking the court to appoint local commissioner,so that he can go to the place of husband and record his statement.  This is inherent power of the court to cross over the hurdles, in the interest of justice.  

 
Reply   
 

No need to worry.


 Decree of divorce by mutual consent is formal in nature.  Prepare a divorce petition by mutual consent and get it signed by the person who is living far away and also by the other spouse, who can personally appear in court and file it.  In the petition, one paragraph has to be specifically pleaded that the husband due to illness, cannot personally present and seek exemption for personal appearance.   If the court still does not satisfy, move an application seeking the court to appoint local commissioner,so that he can go to the place of husband and record his statement.  This is inherent power of the court to cross over the hurdles, in the interest of justice.  

 
Reply   
 
LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA

I do agree with my Ld. Friend Mr. Prabhakar

 
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