The concept of marriage as seen in historical jurisprudence is a complex phenomenon which cannot be confined to one single principle, idea or notion. It is considered to be a combination of several principles, ideas and notions that a perfect logical set of rules cannot be derived from.
The essence of marriage is that it is a union of two individuals and it is a social institution. The ‘wedlock’ which has been part of human civilization from time unknown has evolved to have set rules in the form of various laws that govern the marriages all over the world. The concept of Divorce also has unfolded along the way and has become social fact of our generation.
When there is lawful dissolution of legal ties established at marriage, in the form of divorce the marriage is said to be dissolved. Divorce which may also be called as ‘dissolution of marriage’ is legal way of separation of spouses in a way other than through the death of one of the spouses so that the parties s are free to remarry immediately or after a certain period of time.
Traditionally human society was not in favor of divorce and hence had stable legal bonds established by marriage. However the evolution of societal norms has enhanced the expectations of spouses from each other, which when not fulfilled give rise to the conflicts. The conflicts become incorrigible; disharmony ensues, impacting the mental health, behavioral patterns, financial instability, work life and quality of life.
Identifying the point at which marital cords are losing the harmony affecting one’s holistic well-being becomes an important step. With exemplary experience of interacting with innumerable numbers of couples facing the disharmony in their marital lives, we understand the emotional burden and societal pressure that one goes through when they are in a cusp of separation.
Divorce becomes necessary when the marriage has completely broken down and formal continuance of the marital bond itself is a source of misery. Depending on whether one of the spouses or both in consensus initiating the divorce proceedings leads to two kinds of divorce, Mutual and Contested.
In other words “No fault divorce” where there is no mudslinging on each other. Both the spouses have agreed to part ways and have agreed to settle their financial liabilities, divide their assets, child custody and support is agreed upon and payment of maintenance/ alimony is planned out.
There are no grounds required to file for divorce by mutual consent. However there are pre-conditions that need to be satisfied
a) Existence of a legal marriage as per the applicable law.
b) Both the parties lived together as husband and wife. Couldn’t continue to live together, hence they separated.
c) Lapse of 1 year from the date of marriage is mandatory under Section 14 of Hindu Marriage Act, 1955, and Section 29 of Special Marriage Act, 1954
d) Separation of the spouses for a minimum period of 1 year is necessary to file the application. Section 13B of the Hindu Marriage Act, 1955, Section 28 of Special Marriage Act, 1954 mandates this condition.
Under section 10A of Divorce Act, 1869 the lapse 2 years was mandated for Christians, however the High Court of Karnataka has reduced it to 1 year as decided in Shiv Kumar v Union of India on 3 Feb 2014, AIR 2014 Karnataka 73, 2014 to make this provision in parity with other laws.
Separation of spouses imply either they are residing separately or residing under one roof but do not share common household, financially independent and responsibilities are not interdependent.
Also Read: – Christian Divorce Lawyers in Bangalore
These conditions can be illustrated with an example;
Mr. X & Mrs. Y got married on 01.01.2020, lived together as husband and wife for a few days and on 10.01.2020 started to live separately. The date on divorce can be filed is 11.01.2021 or later.
e) If both the parties have consented to the fact that reconciliation and cohabitation is not possible.
f) Six months of waiting period after filing the joint petition is provided in the law, which is also called as cooling off period to enable parties to get back to each other in cases of a hasty decision taken at the heat of the moment. However the court has discretionary powers to waive off the cooling period in genuine cases.
The Supreme Court in the case of Amardeep Singh v Harveen Kaur AIR 2017 SUPREME COURT 4417, 2017 (8) referring to the option of divorce by mutual consent stated that “The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.”
This is a “Fault Divorce”, where one of the spouses files a petition seeking dissolution of marriage stating the grounds for her/his prayer before the court. The grounds for seeking divorce are specified in the Act applicable based on the religion and Act under which parties’ marriage was solemnized. Irrespective of the different laws that come in play, the grounds are more or less similar across them.
One of the spouses initiates the divorce proceeding, by filing a petition and the other spouse’s consent is not required at that time. On the other hand as the proceedings progress, there may be a consensus reached to agree upon certain terms and conditions in order to settle the issues between them.
The dissolution of lawful wedlock requires legal steps to be adhered to. These requirements call for a divorce lawyer’s professional service to make sure that one goes through the procedure as per law and ease the burden at the difficult time.
Jurisdiction of the Court (Where can one file a Divorce case?)
The divorce petition is to be presented to the district court, which includes Family Court within the local limits of whose ordinary original civil jurisdiction,
i) The marriage was solemnized, or
ii) The respondent at the time of the presentation of the petition, resides, or
iii) The parties to the marriage last resided together; or
iv) In case petitioner is wife, where she resides at the time of presentation of the suit; or
v) The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
This intricate step of understanding the jurisdiction where your case required to be filed can be rest on your divorce lawyer. Consult our best divorce lawyers if you are in limbo.
Analogous provisions of law:
Also Read: – Hindu Divorce Lawyers in Bangalore
STEP 1: Choosing the lawyer
Being a country of many religions and citizens falling under different laws when it comes to marriage, divorce, child custody, succession and such other matters, it may be grueling to understand the provisions of law. Your divorce lawyer has knowledge and understanding of the law to guide you on this.
It is essential that you choose an experienced and skillful advocate who is acclimatized to the courts in the local area of jurisdiction and are well versed with the local language and practices.
STEP 2: Consultation with the lawyer
Fixing an appointment with the a divorce lawyers is your next step. Note down your doubts and questions that you may have regarding intended divorce, as a preparation. You and your spouse can choose one advocate or 2 separate advocates to represent you both in the court. When it comes to mutual consent divorce all the terms and conditions of separation must be spoken, discussed and agreed upon by both the spouses. Guidance on arriving at consensus can be sought from your divorce lawyer.
STEP 3: Documents
Documents such as Address Proof of both the parties, Marriage Certificate, Marriage Invitation Card, Marriage Photograph, Child’s Birth Certificate if any and any other document that may be necessary for the facts mentioned in the petition.
STEP 4: Joint Petition
A joint petition is prepared by the advocate mentioning the details provided by you. You and your spouse will be asked to inscribe your signatures after reading through the petition and accompanying affidavit/s. The duly signed petition is then filed in the court of jurisdiction by the advocates along with the necessary documents.
STEP 5: Waiting period
Once the case is filed for mutual consent divorce, the court following the provisions of law gives a date after six months for the next motion. This period is called as waiting period or cooling off period and it is given to the parties to see if any reconciliation possible between them. However court has the power to waive off this period if there are reasons to believe that the marriage is broken down irretrievably. An effective argument on your behalf by your counsel (advocate/ lawyer) may help in getting this period waived off.
STEP 6: Hearing & Mediation
On the scheduled date either after 6 months or in case waiting period is waived off the earlier date which will be informed to you by your lawyer, both the spouses must be present in the court. Prior to this all the issues related to division or transfer of property and other assets, responsibility assigned for liabilities, child custody & support, amount of maintenance and alimony and any other issue that the parties are concerned about has to be decided and settled amicably by the parties. A mediator talks to both the parties to confirm that there is no chance of reconciliation. With the mediator’s report your file moves back to the court. The Judge may ask few questions based on the facts mentioned in the petition and in the mediation report, to which parties have to answer. Your lawyer will guide through the entire process and be present with you.
STEP 7: Divorce Decree
After the final hearing on the same day or the day after, Judge issues the divorce decree, an order that ends your marriage lawfully. Parties’ presence is required for this stage also. Later your lawyer and the team complete the necessary paper works and informs you when the copy of the final judgment is available, which can be collected from our office.
STEP 8: After the judgment
There is no option for appeal in case of mutual consent divorce. Only in case of any issue related to child custody or property division which was not addressed earlier or any conflict arises further regarding maintenance or alimony, there can be a fresh suit. To avoid this, it is advised to take professional services of a divorce lawyer.
Divorce is one of the most emotionally taxing challenges humans face. In India, it comes with the added burden of various cultural, societal, and familial factors. Fortunately, there is more awareness around it. But there are still a lot of raw emotions involved.
Many couples reach a mutual understanding that their marriage has completely fallen apart and file for divorce. Such a divorce is known as “Mutual Consent Divorce”. It is relatively simpler and less traumatizing than a long-drawn contested divorce case.
Mutual Divorce is also called as “No Fault Divorce” where spouses do not have to sling mud at each other or in other words no blame game and no accusations made at each other. The grounds mentioned in the statutes are not applicable here.
Divorce by mutual consent is also recognized as a ground for dissolution of marriage under different statutory provisions such as The Parsi Marriage and Divorce Act, 1936, Dissolution of Marriage Act 1939, and the Muslim Women ( Protection of Rights on Divorce) Act, 1986 and Divorce Act, 1869 for Christians and to govern inter-religion marriages, Special Marriage Act, 1954.
As per the legal provisions stipulated by the Hindu Marriage Act of 1955, both spouses possess the right to seek the dissolution of their marriage through a decree of divorce, as mentioned in Section 13B. Complementing this, Section 28 of the Special Marriage Act of 1954 and Section 10A of the Divorce Act of 1869 also extend the avenue of divorce by mutual consent.
Choosing a mutual divorce has the following benefits:
Better for Emotional Well-being
Less Time Consuming
Better for Family
Maintain Privacy and Control
If you and your spouse are on good terms despite deciding to separate, it may leave you wondering whether you need professional legal guidance to aid the divorce proceedings. Well, in our experience, most cases do need professional guidance, and here’s why:
We all know divorce is a very stressful time in any individual’s life. In India, it gets more complicated due to our families being involved too. The process of getting a divorce involves handling court communication, gathering information, and making sure that all the deadlines are met. Thus, hiring legal experts is going to take that burden off of you and help you focus on healing.
By hiring a legal expert, you can gain a better understanding of laws regarding divorce in India. A lawyer can help you understand your rights and duties. They can help you make decisions regarding the division of property, assets, and debts, as well as make sure that all the necessary paperwork is properly prepared and filed on time.
We all know divorce is a very stressful time in any individual’s life. In India, it gets more complicated due to our families being involved too. The process of getting a divorce involves handling court communication, gathering information, and making sure that all the deadlines are met. With the guidance and support from your lawyer, you can make informed decisions to protect your interests to the best.
Even in cases where you and your spouse have agreed to all the terms of divorce, you may need to be present in court. You’ll need a lawyer to represent yourself in this scenario. Understanding the process & procedure followed in the busy court could be impossible if there's no one to represent you.
The legal system is very complex for a commoner to navigate. An experienced divorce lawyer can help you in handling all the legal paperwork, and court communication, and meet all deadlines. For a lawyer who visits the court and handles the cases on a daily basis, it isn't difficult to keep updated with the dates of hearing and updates on the court routines.
As mentioned above, navigating the legal system is not easy for a commoner. Even a minor error in documentation or missing a deadline can cause major delays in your divorce proceedings.
The first step towards initiating a mutual divorce is to carefully draft and file a joint petition at the family court. This joint petition is to be signed by both spouses. Subsequent to filing if necessary and on application, the mandatory six months cooling off period may be condoned by the Honorable Court.
In Mediation and Negotiations, an amicable settlement agreement is drawn up and entered into by the parties that would incorporate fair terms for both spouses, regarding permanent alimony, maintenance, child’s custody - maintenance, settlement of property / assets and return of articles.
The next step in divorce proceedings is for both parties to appear before the Honorable judge in family court in person or through Power of Attorney Holder.
Divorce is a period of emotional turmoil for any individual and also potentially life-altering decisions.