HOW TO GET DIVORCE BY MUTUAL CONSENT UNDER HINDU MARRIAGE ACT, 1955  ?

Among Hindus marriage is treated as sacrament and not a contract between two individuals. This   spirit  is reflected in Hindu Marriage Act, 1955. Divorce can be taken by a husband or a wife only on grounds given under the Hindu Marriage Act, 1955 after protracted litigation. As yet Family Courts have not been given any discretion to grant divorce on the basis of no-fault liability or breakdown of marriage.

DIVORCE BY MUTUAL CONSENT

Rigours of law has been relaxed to some extent by introducing Section 13B vide 1976 amendment to Hindu Marriage Act, 1955 which allows husband and wife to file petition for divorce on the basis of mutual consent. Parties can file Petition for divorce by mutual consent only if they are living separately for at least one year or more. Such petitions are filed in two motions. After first motion petition is filed there is cooling off period of at least six months and not more than eighteen months for reconciliation between the parties. If there is no reconciliation between the parties is arrived at, second motion application for divorce can be moved, wherein decree of divorce may be granted by Family Court.

If there is a breakdown of marriage, divorce by mutual consent is a good option for husband and wives, rather than spending years and years in litigation.

STEP-1

Generally,   a settlement agreement is executed  between Husband and Wife before Mediation Centre or otherwise. All agreed terms and conditions between husband and wife are mentioned in the settlement agreement. These may include any amount payable to the spouse, custody of child etc.

STEP -2

On the basis of Settlement Agreement First Motion Petition is filed before the Family Court with the Settlement Agreement. If documents are complete, the Family Court generally  allows the Petition.

STEP -3

Second Motion Petition is filed after six months of filing of First Motion Petition but before eighteen months of filing of the Petition. This period is known as cooling off period. During this period efforts of reconciliation between husband and wife can be made. If reconciliation does not happen between husband and wife, second motion application can be filed before the Family Court.

Earlier cooling period of at least six months was treated as compulsory and only Supreme Court was able to waive off this period in its jurisdiction under Article 142 of the Constitution. But now after judgment of Supreme Court in Amardeep Singh Vs. Harveen Kaur (2017) 8 SCC 746, this cooling off period can be waived by Family Court if there is no chances of reunion. The Supreme Court held that cooling off period provided under Section 13B is directory and not mandatory. In exceptional circumstances, this can be waived of.  The waiver application can be filed after one week after the first motion.

The Family Courts have to consider the following before allowing the Second Motion Application.

(i) The Statutory period of six months specified in Section 13B (2), in addition to the statutory period of one year under Section 13 (B)(1) of separation of parties is already over before the first motion itself.

(ii) All efforts for mediation/conciliation to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts.

(iii) The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties.

(iv) The waiting period will only prolong their agony.

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