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Divorce by Mutual Consent


Authored by - Divyanshi Pathak

Keywords - Divorce, Mutual Consent, Breakdown of Marriage, Legal Provisions


Abstract:


Divorce by mutual consent is formal and legal separation of a couple who willfully do not wish to live together. In this situation the divorce is peaceful and not forced upon any one. This article consists of all the different laws that have been passed regarding divorce by mutual consent and case laws which led to different changes in the legal provisions. In India, there were no laws regarding this in the earlier times but after seeing the changes in the society the laws were added accordingly.


Introduction:


India is a diverse country with different people following different religions, there are separate laws that govern personal laws of different religion. Personal laws are basically a set of rules that are a compilation of customs since a very long time that govern practices like marriage, divorce, adoption etc. Divorce is a formal separation of a legally married couple which ultimately results in the termination of marriage. There are different types of divorces and different essentials that need to be followed to file the same.


Divorce by Mutual Consent:


Divorce by Mutual consent is a situation where both the husband and wife with their own will want to get separated. In this case both the parties consent to the divorce and there is a peaceful and wilful separation. Divorce is governed by the personal laws of different religion as for Hindus, there is Hindu personal law, for Muslim there is Muslim personal laws and so on.


There are different essentials that have to be taken into consideration when there is a divorce by mutual consent. By the Section 13 B of Hindu marriage Act, divorce by mutual consent was introduced. There is a clause in the Section which says that there should be an 18 months’ time period which has to be passed before the divorce to be declared legal by the judge. In this situation any couple who has been living separately for a period of 1 year also known as judicial separation can file the application for a ‘divorce by mutual consent’, after which the court provides a period of 6 months which is basically a waiting period after which the divorce can be passed.


In the case of Amardeep Singh vs. Harveen Kaur[1], the Supreme Court held that the six-month waiting period can be relaxed in certain exceptional situations. If the court finds the marriage to be unworkable or if the waiting period prolongs the agony, it can be waived off by the court. There has to be a prerequisite that has to be followed in this situation, it has to be seen that the couple applying for the divorce has been married for a period of minimum one year.


In case of Muslim community, the divorce is governed by the dissolution of Muslim marriage Act 1939. In Muslim community, there are two types of divorces. One being the ‘khula’ and other being the ‘Mubarat’. Mubarat is similar to a mutual consent divorce as in this condition, both the husband and wife are not ready to live together anymore. Any one of them can file the application while the other person has to accept it. While we see the divorce has happened by mutual consent the Iddat period is mandatory. Iddat period is a waiting period that a woman has to observe after the death or divorce, during this time she cannot marry another man. It is basically observed to remove any doubts regarding the paternity of the child born after the death or divorce. In the case of Md. Abdul Zalil Ahmed vs. Mustt. Marina begum[2], it was observed by the family court that there is no provision of Divorce by Mutual consent in Muslim law.


Goa is the only region in India which follows Uniform Civil code, otherwise people living in different states follow their personal laws and customs. There are other legal provisions as well which govern the acts of marriages and divorce. Also, we have seen time and again judiciary keeps on interfering in the personal laws of different religions if they clash with the rights given by the Constitution.


The Indian Divorce Act was enacted in the year 1869 and it regulates divorce laws for the Christian community residing in India. This is only codified law regulating divorce amongst the Christians. The Act was based upon English laws governing the divorce and was even gender discriminatory in various parts. The courts felt a need to amend the Act so after all the amendments and adding more provisions, The Indian Divorce Act 2001 was passed.


In divorce by mutual consent, Section 10A of the Act comes into play. The Section states if the couple isn’t living together for more than two years and cannot live together anymore can present the divorce application in the court, however, there has to be a waiting period of six months which has to passed so that divorce can be granted.


Conclusion:


As we have seen there are different religions in India following different laws for divorce and any other personal engagements. It is appreciable that with time, every religion and even the judiciary undergo amendments and understand the need of including divorce by mutual consent. It is better to not prolong the agony of a couple, who by their own will want to get separated and peacefully consent to do so.


[1] MANU/SC/1134/2017 Amardeep Singh vs. Harveen Kaur (12.09.2017 - SC) : MANU/SC/1134/2017 [2] MANU/WB/0021/1989 Md. Abdul Zalil Ahmed vs. Marina Begum (16.07.1998 - GUHC) : MANU/GH/0011/1999


References:


1. https://www.divorcelawyers.co.in/area-of-practice/mutual-consent-divorce-procedure-india-complete-guide/

2. https://economictimes.indiatimes.com/wealth/save/divorce-costs-documents-needed-and-steps-involved/articleshow/73608055.cms?from=mdr

3. https://legaldocs.co.in/mutual-consent-divorce

4. https://www.toppr.com/guides/business-laws-cs/introduction-to-law/principle-sources-of-indian-law-personal-law/

5. https://www.gsbagga.com/blog/procedure-of-divorce-in-muslim-law-by-the-mutual-consent/

6. http://www.legalserviceindia.com/legal/article-1764-christian-law-regarding-marriage-and-divorce-in-india-indian-christian-marriage-act-1872.html






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