mutual-divorce

Mutual Divorce


INTRODUCTION
Hindu marriage is playing a very crucial role in our society. It is continuing since ancient.
Times. Under this married woman and man both having mutual consent. When their consent
is not agreed with each other than a dispute arises among relationship.
● Nature of Hindu marriage:
Marriage is one of the oldest institutions of Hindus. Marriage is essential also because all the
religious ceremony and are to be performed by a Hindu in the companionship of his wife
otherwise, they will not bear any fruits. Wives (women) have been considered to be better
halves and religious partners of their husbands which means that half part of a man is his
wife and that without being married, the personality of a man remains imperfect.
Hindu marriage has been said to be a sacrament also because the marital relation between
the spouse is created not on account of any contract between the two but by under of gift
of the girl by her father to the bridegroom.
● Marriage under the Hindu marriage act, 1955:
Hindu marriage which was considered to be religious duty and sacrament has undergone a
change and it has lost its religious sanctity under the Hindu marriage act 1955.
Marriage may be solemnized between any two Hindu i.e., man and woman if the following
conditions are applied:
Monogamy – neither party has a living spouse at the time of marriage.

  1. Soundness of mind – party at the time of marriage must be of sound mind.
  2. Age of marriage – must attain the age of majority.
  3. Beyond prohibited degree- parties are not within the degree of prohibited
    relationship.
  4. Beyond saline relationship- parties are not spending of each other unless the custom
    or usages governing each of them permit marriage between the two.

When the marriage having restitution of conjugal rights then a mutual divorce case may
arises.
What is mutual consent divorce?
When both the parties husband and wife want to terminate their marriage with the mutual
consent this is called mutual consent divorce.

Condition to file a mutual consent:
As per sec 13 B of the Hindu marriage act,1955. The following conditions must be met to
fulfill a mutual divorce:

  1. The spouse must live desperately for at least one year.
  2. The spouse feels that they cannot live together.
  3. Both the husband and wife know that their marriage has collapsed.
  4. Both parties agree to comply and file for a mutual divorce without any
    influence bribe or fraud.

Mutual divorce procedure in India:

Step 1: Filling a divorce petition
Firstly a joint petition for dissolution of marriage for a decree is to be presented to the family
court by both the spouse on the ground stating that they have not been living separately for
a period of 1 or more.
This petition will then be signed by both parties.
Step 2: Appearing before court and inspection of the petition.
Both the parties will have to appear before the family court after the filing of the petition.
The parties would present their respective lawyers
Step 3: Passing order for a recording of statement and oath.
After the petition is scrutinized by the court and it satisfies, it may order the parties,
statement to be recorded as an oath.
Step 4: First motion is passed and 6 months is given before the second motion.
Once the statement is recorded an order on the first motion is passed by the court.
After this a six month period to give to both the parties to a divorce, before they can file the
second motion.
Step 5: Second motion and final hearing of the petition.
Once the parties have decided to go further with the proceedings and appear for a second
motion. They can proceed with the final hearing this includes parties appearing and recording statements before the family court.
Step 6: Decree of divorce.
In the mutual divorce, both the parties must have given consent and there shall not be any
difference left in the matters related to contention regarding alimony, custody of the child,
maintenance, property, etc.

The divorce become final once the decree of divorce has been passed by the court.


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