Divorce by Mutual Consent

What is Mutual Divorce?

When both parties to the marriage want to end the marriage and reach an agreement to this effect and, upon satisfying specific other legal requirements, mutually present a petition for divorce in a court having territorial jurisdiction, it is called Divorce by Mutual Consent and is also colloquially called Mutual Divorce.

Hindu Marriage Act The Special Marriage Act allow two parties to the marriage to end their marriage by way of mutual consent. The said provision, similarly worded in both acts, says –

A petition for dissolution of marriage by a decree of divorce by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1974 on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months after the said date if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are factual, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

The advantage of Mutual Consent Divorce

When it is clear that two people cannot remain in the marriage relationship due to temperamental or other differences, Divorce by Mutual Consent or Mutual Consent Divorce saves time, money, and acrimony between the parties. The parties can themselves agree on how to divide the assets and liabilities as well as the roles and responsibilities towards children, if any. A Divorce without much acrimony can also mean that parties can continue as friends rather than sworn enemies.

Necessary conditions for Mutual Consent Divorce

Thus, a petition for dissolution of marriage by way of mutual consent should contain the following points:

1. That the parties are living separately for a period minimum ONE year
2. That they have not been able to live together
3. That they have mutually agreed to dissolve their marriage

People sometimes ask whether “living together” means living in separate adobes. SC has clarified in Sureshta Devi vs Om Prakash AIR 1992 SC 1904, (1991) 2 SCC 25 that the parties don’t need to live under separate roofs. They may live in the same house but not as husband and wife. Still, it is a challenging task to convince courts about the same. Such a decree, once obtained, can be challenged only on the grounds of fraud, undue influence or coercion.

Mutual consent is not collusive. The section is so worded that the agreement to obtain mutual consent divorce which can detail many aspects like Custody of children, alimony, maintenance, the fate of any other pending litigation like Section 498a IPC (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) or Domestic Violence Act is not said to be collusive. Collusion for S 23 of the Hindu Marriage Act and the corresponding provision of the Special Marriage Act means conspiracy to do any illegal act. If all agreements are said to be a conspiracy, then the purpose of this section would be defeated.

Mandatory periods Divorce by Mutual Consent

The legislature envisaged two mandatory periods in Divorce by Mutual Consent

1. Parties should be living separately for ONE Year:
2. There should be a waiting period of SIX Months between both motions.

A one-year period of separation is mandatory before filing the Petition for Divorce on the grounds of Mutual Consent. However, in extremely rare cases, courts like the Uttranchal High Court and Delhi High Court have allowed the waiver of the mandatory period, but that too when the marriage was pretty short. As a practice, the courts won’t allow the waiver of this mandatory one-year separation.

Six months waiting period is mandatory

Until recently, the courts were nearly unanimous that A six-month waiting period is mandatory and can not be waived. However, courts across the country were waiving off the statutory waiting period in the interest of justice. Supreme Court ended this practice in Anil Kumar Jain vs Maya Jain (2009) 10 SCC 415 and said only SC can waive this mandatory period in the interest of justice. In the latest judgment, i.e. Amardeep Sing vs Harveen Kaur, Apex Court noted that the waiting period between the first motion, i.e. 13B(1) and the second motion, i.e. 13(B)2, is a directory and not mandatory and is created to see the feasibility of reuniting between the parties. The waiting period can be waived off at the court’s discretion if they have been separated for long periods or are in an abusive relationship/ litigation for a period longer than mentioned in 13B(2). Thus, they gave the following points for consideration by courts before waiving the cooling-off period of Six Months:

1. How long parties have been married?
2. How long litigation is pending?
3. How long they have been staying apart?
4. Are there any other proceedings between the parties?
5. Have the parties attended mediation/conciliation?
6. Have the parties arrived at a genuine settlement which takes care of alimony, custody of children or any other pending issues between the parties?

Based on these the courts, if satisfied of below four conditions can waive of the cooling off period:

1. the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
2. all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
3. the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
4. the waiting period will only prolong their agony.

A point to be noted is that despite waiving second mandatory period of 6 months between first and second motion the Apex Court in all its wisdom has still kept a waiting period of ONE WEEK between First Motion and Second Motion to explore the possibilities of reconciliation between the parties.

FAQ about Mutual Consent Divorce