「 ✦ Content ✦ 」

Online Legal Query attempts at clearing the clouds and answering frequently asked questions around conditions for mutual consent divorce in India. The blog here addresses several doubts which people have raised, and their answers as per law. 

FAQs on Conditions for Mutual Divorce in India

What are the conditions for mutual consent divorce?

Section 13B of the Hindu Marriage Act, 1955 requires that the couple should be living separately for 1 year or more, not been able to live together, and mutually decide to dissolve the marriage. The Court in such a case, after 6 months of the presentation of a petition for mutual divorce grant divorce. Section 14 however restricts any petition seeking divorce within 1 year of marriage. 

On the other hand, Section 28 of the Special Marriage Act, 1954 also lays the conditions for mutual consent divorce akin to that of the Hindu Marriage Act. Thus, the major condition is couples living separately for 1 year or more, and there is no possibility for the two to live together. 

Is 1 year separation mandatory for mutual divorce?

As per the provision under Hindu Marriage Act as well as the Special Marriage Act, separation of at least 1 year is necessary for filing a petition for divorce by mutual consent. However, it is open for the Court in exceptional circumstances to waive off the 1 year separation among the other conditions for mutual consent divorce in India. 

What is the waiting period for mutual divorce?

The period of at least 6 months and not more than 18 months’ gap after presentation of a petition for mutual divorce is usually termed as the waiting period. It may be noted that the Supreme Court in a recent ruling held that the 6 month waiting period can be waived off by invoking Article 142 of the Constitution of India. One may connect with a lawyer to understand the technicalities of such waiver. 

What are the conditions for mutual divorce in India for couples with children?

There are no specific conditions for couples having children and opting for mutual divorce. Like any other aspect before mutual consent divorce, couples must decide among themselves the setup for custody of child and the visitation rights. In such cases, the arrangement for child custody and others including child support and maintenance are also stated in the petition for divorce. For those couples who agree for divorce but cannot come to an amicable settlement for child custody, they may approach the Court for the said matter. 

Does the wife get money in mutual divorce?

The Hindu Marriage Act makes the provision gender neutral, while the Special Marriage Act gives special treatment for the wife to get maintenance from her husband. Since it is a mutual divorce, aspects like alimony and maintenance are pre-decided by the couples, aiming at an amicable separation. However, there have been instances when the wife who initially agreed to mutual consent divorce later backs out and comes up with the demand of huge maintenance.  

What is evidence in mutual consent divorce?

For a mutual consent divorce, couples need to prove compliance with the conditions for mutual consent divorce in India. The documents for mutual consent divorce include identification proofs of both husband and wife, proof of marriage including wedding invitation card, photographs and marriage certificate. Address proof of both the spouses is also required. 

Can a wife claim maintenance after mutual divorce?

Once the mutual consent divorce is finalized with the decree of the Court, the wife cannot seek any maintenance from her husband under the Marriage laws. However, Section 125 of the Criminal Procedure Code does not impose any such restriction and the definition of wife also includes a divorced wife. Thus, a wife can claim maintenance after mutual consent divorce under Section 125 of CrPC.

What is the minimum time period for mutual divorce?

Since the timeline provided among the conditions for mutual consent divorce in the related provisions is provided as 6 months to 18 months for the Court to grant divorce, the same may be taken as the minimum time period for grant of divorce. However, things may not go as quickly and it may take quite longer in some cases.

Written by: Advocate Kalpana Sanap