“All you need to know – Before filing for mutual consent divorce, one needs to know the importance of the cooling-off period, various important factors, and ways to waive it.”
MUTUAL CONSENT DIVORCE IN INDIA
A recent case of divorce by mutual consent highlights that you should not read a judgment as law or interpret it too rigidly. This positive precedent gives individuals more control over their private marital affairs and minimizes state involvement in the lives of citizens. This article throws light upon what is divorce by mutual consent, what is cooling period and how to end the cooling period.
STEPS INVOLVED IN DIVORCE BY MUTUAL CONSENT
Questionnaire: Once you finalize the service, we will provide you a questionnaire to capture your details.
Drafting Of Joint Petition And Approval: Once the questionnaire has been prepared the next step is to draft a joint petition and its approval. The lawyer will draft and share a petition for your review and approval. This petition will include an agreement on the division of assets, custody of children, and maintenance amount.
Dispatch Of Documents: Once the second step related to the drafting of the joint petition and its approval is finished the next step is related to the dispatch of the document. Here, we will be required to send the signed copy of the petition along with the required documents to us.
Filing Divorce Petition: Once the third step related to the dispatch of documents has been done the other step is filing the divorce petition. Upon receipt of the documents, the joint petition will be filed at the appropriate family court.
Appearance Of Parties: Once the step related to filing a divorce petition has been completed. The next step is related to the appearance of parties. You and your partner along with the lawyer will appear before the family court.
Reconciliation Period: Once you and your partner’s lawyers appeared in court, the next step is related to the reconciliation period i.e. the court will give you a period of 6 months to re-think the decision of obtaining a divorce. the court may reduce this period to even one month if deemed fit.
Appearance Of Parties In Court After 6 Months: After the reconciliation process is over, you and your partner along with the lawyer will appear in court and file a written submission that you would like to finalize the divorce
Grant Of Divorce: After the parties have appeared in court after 6 months, the last and final step is the grant of divorce, upon satisfaction of the judge that all requirements of divorce are met, a mutual consent divorce decree would be granted.
Once you finalize the service, we will provide you a questionnaire to capture your details.
WHAT IS MUTUAL CONSENT DIVORCE?
If both parties agree to dissolve their marriage amicably, it is more peaceful than fighting in court and defaming each other. They can file a petition in a district court under amended section 13B of the Hindu Marriage Act, 1955 so that the court can grant them a decree of divorce. The divorce will not be affected by the proceedings before the Panchayat. It requires processing through matrimonial courts.
WHAT IS THE COOLING OFF PERIOD IN MUTUAL CONSENT DIVORCE?
Section 13-B of the Hindu Marriage Act, 1955 allows couples to seek divorce by mutual consent. Divorce by consent means that both spouses agree to a peaceful separation.
It is easy to legally dissolve a marriage by mutual consent. Section 13-B(2), Hindu Marriage Act, 1955, prescribes a cooling off period of six months between the first and last proposals for divorce to ascertain the possibility of settlement and cohabitation. This cooling-off period is also known as a statutory period.
WHEN CAN THE COOLING OFF PERIOD BE RELAXED?
You may want to consider the following questions when considering skipping a cooling-off period:
- How long did the marriage last?
- How long was the couple separated?
- possibility of reconciliation
- How long was the couple together?
- Since when is the case pending?
- the existence of any other proceedings between the parties
- Does the couple have child/children together
- Whether the parties have reached an open agreement regarding alimony, alimony, or child custody.
UNDER WHAT CIRCUMSTANCES CAN THE COOLING PERIOD BE WAIVED?
The Hon’ble Supreme Court in the case of Amardeep Singh v Harveen Kaur ruled that mutual divorce can be granted if the cooling off period of six months is waived. Section 13B(1) deals with the jurisdiction of the court.
Further, it addresses the maintainability of the petition, so the parties cannot set aside it. However, Section 13B(2) is administrative and should not be struck down unless the Court in each case examines all the circumstances and details which may permit conciliation. Article 142 is not mandatory. It was historically useful for courts not to allow time in exceptional circumstances. The court said that Amardeep’s case was not urgent.
If a party wants to waive the statutory 6 months waiting period as per section 13B(2), Before making a final decision the court will need to:
The statutory period of six months mentioned in section 13B(2) is mandatory. Further, the statutory period of one year as per Section 13B(1) of the separation of the parties has already expired prior to the first proposal.
All efforts at mediation or conciliation including Order XXXII A Rule 3 CPC or Section 23(2) and Section 9 of the Family Courts Act to reunite the parties have failed. Along with this, there is no possibility of getting success with more effort. The parties can actually settle their exclusivity, including child custody, alimony, or any such issue among themselves.
The waiting period can only add to their suffering. Also, in the first week after the first petition is over, it is possible to submit an exemption application in these situations. You can do this by applying the reasons for the waiver request. The court may change the control over the second grace period.
JUDGMENTS OF VARIOUS COURTS
CASE 1:
Divorce by consent requires that both the husband and wife agree to the divorce, and both seek divorce as a solution. The High Court of Rajasthan considered this question in Suman Vs. Surendra K. This lag period exists to allow the partners to think about their moves. During the gap period one of the partners, or both of them may have other ideas. After this, they can decide to end their marriage.
CASE 2:
Division Bench of the Delhi High Court in Rajeev Chikara Vs. In the case of Sandhya Matu, it was ruled that preventing arbitration is mental cruelty. In this case, the court found that the couple had separated in 2009 and their relationship was irreconcilable. Under these circumstances, the court ordered that one of the partners maintain the marital bond.
CASE 3:
The case of Dinesh and Ranjana Gulati was one in which the husband committed contempt of process against his wife. This was based on the petition that he had filed against his wife, Claiming that a housewife failed to comply with her husband’s request.
Family Court: https://districts.ecourts.gov.in/ suo moto initiates contempt proceedings against the spouse for non-compliance with the consent decree. Also, the Division Bench ruled that the order for suo motu initiation of contempt proceedings fails to recognize the reciprocity element of Section 13B. Once the parties were not able or unwilling, the only recourse available was to reinstate the bona fide divorce petition.
CAN MUTUAL CONSENT DIVORCE BE WITHHELD?
If one party changes their mind and wants to save their marriage, they can file a petition before the court. The application states that he/she wants to withdraw the consent for divorce proceedings as they want a second chance for their marriage. If both spouses agree to the withdrawal, the Court may dismiss the petition.
CONCLUSION
Divorce by consent is when the husband and wife end the marriage of their own free will. Cooling-off periods can positively affect couples by allowing for a fresh approach. While divorce by mutual consent is the best way to end a marriage, it is important to consider the future implications. Both spouses should try to end their marriage honorably, without causing more trouble or harm than before.
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