Tarleen Kaur has written about : PROCEDURE FOR DIVORCE BY MUTUAL CONSENT
Under Hindu Laws, Section 13-B of the Hindu Marriage Act, 1955 describes Divorce by Mutual Consent, whereby clause (2) of the section is the procedural aspect for the same. The steps involved in Divorce for Mutual Consent are as follows-
- First Motion– First of all, a divorce petition has to be presented to the Family Court by both the parties (husband and wife) jointly. But, three pre-requisites must have been fulfilled before filing this divorce petition-
- The parties must be “living separately” for one year or more. Here, living separately does not exclusively imply that the parties should have been living at different places. Even if they are living in the same house, but not living as husband and wife i.e. not performing the marital obligations, then also they are deemed to live separately.
- The parties have not been able to live together.
- They have mutually agreed to dissolve the marriage.
- Appearing before Court- After filing the petition, both the parties need to appear before the concerned Family Court to record their statements with respect to the petition filed by them. The parties present their respective lawyers for the case.
- Court Examination- The court inspects the petition and reviews all the documents presented before it. During this process, the court also tries to bring reconciliation between the parties. However, if this is not achievable, then the case proceeds further. After the completing the inspection process, the court may order to record the statements on oath.
- Order on the First Motion- Subsequently, the court passes an order on the first motion.
- Cooling off period- The court gives a minimum of six months period to both the parties to ponder again upon the decision they have made. This period is known as cooling off period and it may extend to a maximum of eighteen months. This cooling off period, however, is not mandatory. It can be waived off by the Court by taking into consideration the facts and circumstances of the case. This mostly happens when the court feels that the marriage had broken down irretrievably.
- Second Motion- If the parties are still not ready to continue with the marriage and decide to move further, they file a second motion before the court. This also requires the parties to appear before the court and record their statements. This second petition has to be filed within eighteen months of the filing of the first petition.
- Decree of Divorce- After hearing the parties, if the court is satisfied that the averments made by the parties in the petition are true and that there is no possibility of rapprochement; it may pass a decree of divorce. With effect from the date on which the decree is passed, the marriage gets dissolved.
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Therefore, the above procedure needs to be followed step by step to file a divorce by mutual consent under Hindu Law. The decree is appealable in case the consent of any of the parties was taken by coercion, undue influence or fraud.