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Divorce by mutual consent, also known as mutual divorce, involves both spouses agreeing that they can no longer continue living together and that the best course of action is to legally end their marriage. This requires both individuals to provide written consent for the divorce and, if they have children, to make arrangements for child custody and visitation. To finalize the divorce, the couple must go through a legal proceeding in court.

Section 13B of the Hindu Marriage Act, 1955, the Act which specifically deals with Hindu marriages, provides the provisions of Divorce by mutual consent.

According to this section-

"(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, 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.

(2) 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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 true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

Section 28 of the Special Marriage Act, 1954, the Act which deals with marriages irrespective of religious denomination also has similar provisions regarding divorce by mutual consent.

Where the Mutual Divorce Petition can be filed?

A mutual divorce process is commenced with the filing of a divorce petition, which may be filed in the family court of any of the following places;

Ø  Where the couple last lived.

Ø  Where the couple’s marriage was solemnized.

Ø  Where the wife currently resides. 

Process of Mutual Divorce:

1.       Filing a Joint Petition:

The first step in obtaining a mutual divorce is to file a joint petition in the relevant family court, signed by both parties. The petition includes a joint statement indicating that the couple has irreconcilable differences and cannot continue living together, as well as agreements on issues such as asset division and child custody.

2.       Court Appearance:

After the petition has been filed, the court will schedule a date for both parties to appear in court, accompanied by their attorneys. This is the second step in the process of obtaining a mutual divorce.

3.       Scrutiny of the Petition by Court:

After the petition and accompanying documents are filed, the court will review them to ensure everything is in order. If the court is satisfied, it will order to record the statements of the parties on oath. In some cases, the court may try to reconcile the parties before proceeding with the divorce. If reconciliation efforts fail, the divorce process will continue.

4.       Recording of statement and passing of the order on First Motion:

Once the statements of the parties have been recorded on oath, the court will pass an order on the first motion. After this, a six-month period is given before the parties are required to file a second motion, which must be done within 18 months of the filing of the first motion petition.

5.       Appearing for Second Motion:

If both parties still do not agree to reconcile after the first motion or the end of the reconciliation period, they may appear for a second motion for the final hearing. This also involves the parties appearing in court and recording of statements before the court. In a recent ruling, the Supreme Court stated that the six-month period is not mandatory and may be waived at the discretion of the court. If the second motion is not filed within the 18-month timeframe, the court will not grant the divorce. Additionally, according to the law, either party may withdraw their consent at any time before the decree is issued.

6.       Decision of the Court:

The most important requirement for a mutual divorce is the free consent of both the parties. Unless there is a complete agreement between the husband and wife to dissolve the marriage and the court is fully satisfied, it cannot grant a divorce by mutual consent. Based on the statements given by the parties and the specific circumstances of the case, the court will make a decision and dissolve the marriage. The court will then issue a decree of divorce, making the divorce final.

Landmark Judgments:

In the case of Sureshta Devi v Om Prakash, 1992 AIR 1904, 1991 SCR (1) 274, the Supreme Court held that “The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.”

In Smt. Suman v. Surendra Kumar, AIR 2003 Raj 155, the Rajasthan High Court observed that “the period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts”. The court also held that “Silence cannot be taken to amount to withdrawal of consent. By his continued silence the respondent-husband has frustrated the proceedings for more than three years. If he was withdrawing his consent for dissolution of marriage by a decree of divorce by way of mutual consent, nothing prevented him from taking that stand before the Family Court at the stage of second motion.”

In Rajat Gupta v. Rupali Gupta, the Delhi High Court held that the agreement between the parties to resolve their differences and pursue a divorce by mutual consent is a legally binding agreement and a form of undertaking. If one party subsequently withdraws his consent without just cause, he would be in breach of the undertaking made before the court of law, resulting in civil contempt of court by wilfully disobeying an undertaking. If a party wishes to withdraw his/her consent, he/she must do so on a just and reasonable ground and the other party must not suffer prejudice.

References:

https://blog.ipleaders.in/mutual-consent-divorce/

https://lawrato.com/indian-kanoon/divorce-law/divorce-by-mutual-consent-in-india-130

https://www.legalserviceindia.com/legal/article-7424-mutual-consent-divorce.html