Introduction
In India, marriage is much more than a social arrangement; it is almost a legal bond. Such a bond receives its legal acknowledgement through the personal laws governing and controlling it. When a marriage breaks down irretrievably, and both parties feel they can no longer stay together, the law provides a dignified way of separation. Such divorce is known as a mutual consent divorce.
What is Mutual Consent Divorce?
Mutual consent divorce is a legal step where husband and wife agree to dissolve their marriage. In this approach, people are not required to show reasons like cruelty or adultery, which come up in the contested case. The main factor lies in their mutual perception that the marriage has failed and cannot be improved. Courts in India accept this under various personal laws. For Hindus, it falls under Section 13B of the Hindu Marriage Act of 1955; similarly, the Special Marriage Act of 1954 covers it under Section 28, while Christian and Parsi laws have similar rules. The main underlying concept here is based on agreement between the couple and sorting out various related issues like alimony payments, child support requirements, and visitation rights, as also how to divide property.
The Basic Requirements for Mutual Consent Divorce
The courts have some pre-requisites for granting a divorce based on mutual consent. Firstly, the spouses need to stay in separation for at least one year before filing.
Staying in separation does not necessarily imply different residences. It only implies they no longer live as a married couple. Secondly, consent of both parties is required for the divorce. They must take this decision entirely out of free will. Thirdly, they must acknowledge the marriage has indeed collapsed and cannot be saved. Reconciliation is out of the question as per them.
The Two-Motion Process
Mutual consent divorce normally has a two-motion procedure. In the first motion, the couple approaches the family court with a joint petition by the two. This filing reflects their mutual consent to end their marriage. Then, there is a cooling-off period of six months. This period enables the parties to reconsider or attempt reconciliation. For the second motion, both come after that cooling-off period to confirm their decision. If the court is satisfied that the case is beyond reconsideration, it grants a divorce decree. However, the Supreme Court has held that this cooling-off period of six months is not rigid. Judges have the discretion to waive this if they are satisfied that the marriage has become irretrievable and all matters stand settled.
Advantages of Mutual Consent Divorce
This kind of divorce saves a lot of time as compared to prolonged fighting in courts. It costs less in the end, with fewer court dates and less paperwork involved. On an emotional level, it feels less draining since it doesn’t require long fights and harsh accusations. The process keeps things private, maintains some dignity, and avoids public clashes.
Challenges
Even something as simple as a divorce by mutual consent may encounter some problems. One of the parties may withdraw before the second motion is filed. The parties may disagree over the settlement terms and further litigation may ensue. For that matter, even the court may delay it. Both parties must cooperate fully until the final decree is issued.
Conclusion
Mutual consent divorce provides an enlightened approach to handle marital failures. The emphasis is on cooperation rather than contesting, allowing a couple to close a burdensome period in their lives graciously and efficiently. Availability of the services of an attorney plays an important part here. Ultimately, success depends upon openness, candour, and genuine consensus between both.
