Divorce by mutual consent under Hindu marriage Act, 1955

Under the Hindu Marriage Act, 1955, divorce by mutual consent is governed by Section 13B. The spouses must have lived separately for a continuous period of at least one year before filing the divorce petition. During this period, they should have mutually agreed that their marriage has irretrievably broken down. Thereafter, both spouses need to jointly file a petition for divorce by mutual consent. The petition should be presented to the family court that has jurisdiction over the matter. The petition must contain details such as the reason for divorce, terms of separation, and any agreements regarding child custody, alimony, and division of assets, if applicable. After filing the petition, both spouses must appear in court together. They need to reaffirm their consent for the divorce and verify the contents of the petition. The court imposes a mandatory waiting period of six months, known as the cooling-off period, starting from the date of the first appearance in court. After the cooling-off period, both spouses must appear in court again for the second motion. They need to reconfirm their consent for divorce and inform the court of their decision to proceed. If the court is satisfied that their consent is genuine and there is no possibility of reconciliation, it will grant the divorce decree. Similar provisions exist under Section 28 of the Special Marriage Act, and Section 10A of the Divorce Act which govern divorce by mutual consent. Its cost varies from case to case in India.

Nature and Scope of divorce by mutual consent in India

• Amicable Resolution: Divorce by mutual consent is a process where both spouses agree to end their marriage on amicable terms. It reflects a desire for a peaceful separation without any acrimony or fault-finding.
• Voluntary Consent: Both parties must willingly and voluntarily agree to seek a divorce. It is a consensual decision that requires the mutual consent of both spouses, demonstrating their shared desire to dissolve the marriage.
• No-Fault Grounds: Unlike other grounds for divorce, mutual consent divorce does not require establishing fault or wrongdoing by either party. The reasons for divorce can be personal incompatibility, irretrievable breakdown of the marriage, or any other valid reason agreed upon by both parties.
• Cooling-off Period: To ensure that divorce is not impulsive and allows time for reflection, the law mandates a cooling-off period of six months. During this period, the court encourages reconciliation and gives the couple an opportunity to reconsider their decision.
• Consent Statements: Both spouses must appear in court and provide consent statements affirming their mutual desire to dissolve the marriage. These statements play a crucial role in the divorce proceedings and demonstrate the voluntary nature of the decision.
• Settlement Agreements: As part of the divorce process, spouses are encouraged to reach a settlement agreement on various issues such as child custody, alimony, division of assets, and any other matters relevant to the dissolution of the marriage. These agreements provide clarity and help in the smooth progression of the divorce proceedings.

Cost of Mutual Divorce in India

The cost of divorce by mutual consent in India can vary based on several factors such as the location, complexity of the case, lawyer’s fees, court fees, and additional expenses. The potential costs involved in a mutual consent divorce in India are:

• Lawyer’s fees: The fees charged by lawyers can vary significantly based on their experience, reputation, and location. It is advisable to consult with multiple lawyers and compare their fees. The charges can range from a few thousand rupees to several lakhs.
• Court fees: When filing for divorce, there are certain court fees involved. The exact amount depends on the state and the court where the divorce petition is filed. These fees typically range from Rs. 500 to Rs. 5000.
• Documentation and notary charges: You may need to pay for the drafting and notarization of various legal documents required for the divorce process. The cost of these services can vary but is generally not very high.
• Miscellaneous expenses: There might be additional expenses involved, such as travel expenses if you need to appear in court hearings, expenses for obtaining copies of documents, or any other related costs.

It’s important to note that the cost of divorce by mutual consent can vary from case to case. The overall expenses can depend on the complexity of the issues involved, the length of the proceedings, and the specific requirements of the spouses, and ranging anywhere between Rs. 10,000 to Rs. 2 lakhs or more.

Factors affecting Cost of Mutual Divorce in India

• Complexity of the case: The complexity of the divorce case can significantly impact the cost. If there are contentious issues such as child custody, property division, alimony, or other disputes that require extensive negotiation or legal proceedings, the cost may be higher.
• Mediation or counselling: In some cases, the court may require mediation or counseling sessions to attempt reconciliation or resolve disputes. The fees associated with these services can add to the overall cost.
• Additional expenses: There may be additional expenses involved, such as travel expenses for court appearances, hiring expert witnesses, obtaining copies of documents, or any other related costs that arise during the divorce proceedings.

Landmark cases on divorce by mutual consent in India

1. Amardeep Singh vs. Harveen Kaur (2017): In this case, the Supreme Court emphasized the mandatory cooling-off period of six months in mutual consent divorce cases, stating that it is a legislative mandate and cannot be waived. The court upheld the importance of this waiting period to ensure that divorce is a well-considered decision and to explore possibilities of reconciliation.
2. Naveen Kohli vs. Neelu Kohli (2006): This landmark case established that consent given for mutual divorce under emotional stress or influence cannot be considered as free consent. The Supreme Court held that consent for divorce must be free from any coercion, fraud, or undue influence for it to be valid in a mutual divorce.
3. Sureshta Devi vs. Om Prakash (1991): This case clarified that even in cases of mutual consent divorce, the court has a duty to ensure that the terms of the settlement are fair and reasonable, especially with regard to maintenance and child custody arrangements. The court emphasized that the welfare of the children is of paramount importance.

Conclusion

The cost of mutual divorce can vary significantly from case to case. Each divorce situation is unique, and the total cost will depend on the specific circumstances involved, as the process and requirements for mutual divorce may vary slightly based on the jurisdiction and the specific circumstances of the case.