Divorce by mutual consent is when both the parties to the marriage i.e. the husband and the wife mutually agree that they cannot live together anymore and they believe that the best solution is to file for a divorce. They jointly present a mutual divorce petition before the court having jurisdiction, without mentioning any allegations against each other.
According to the provisions of the Hindu Marriage Act, 1955, both the husband and the wife have the right to dissolve their marriage by a decree of divorce on various grounds provided under Section 13 of the Act. Further, Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent.
Key ingredients for seeking divorce by mutual consent:
- The parties mutually agree to divorce;
- Both spouses must live separately for at least one year;
- The parties agree mutually that they want to get separated and they cannot live together anymore;
- The parties agree to comply and file jointly for a mutual divorce without any undue influence
- Consent should be free which means consent in case of divorce by mutual consent should not be obtained by fraud or force[i].
Advantages of mutual divorce
Several advantages of mutual divorce are discussed below:
1. It is amicable- The decision of ending a marriage is mutual and amicably decided between the parties and hence, it is a hassle-free procedure.
2. Less legal formalities:
Neither party has to:
- Appear before the court time to time;
- Obtain witnesses;
- Fight for child custody or maintenance (gets mutually decided between the couple);
- Fight over property issues, etc.
3. More affordable
One lawyer is appointed to represent both the spouse for seeking a divorce by mutual consent and this results in lower costs for both the parties. As there are fewer steps involved in seeking divorce by mutual consent and hence it is less expensive.
4. Alimony pre-decided in mutual divorce
The parties fix the amount of alimony through mutual consent. The mutually decided amount is to be paid by the husband to his wife and hence the dispute doesn’t arise between them.
5. Fast procedure and less cumbersome
The process for seeking mutual divorce is fast and less cumbersome and it is possible to obtain a decree from the court comparatively faster. However, the proceeding may prolong for six months to one year depending on each case. If the matter is serious then the time may extend up to two years or more.
6. Compliance with the agreement or undertaking
The parties enter into a prior agreement and hence its compliance will not be objected to by either party. The Bench noted[ii] that if one of the spouses suffers disadvantage or irreversible prejudice, the family court can direct “restoration of status quo ante [the way things were before] in every possible way”.
7. No dispute on property issues
The parties mutually agree on the issues related to ownership of property and enter into an undertaking. This is a very important benefit for seeking divorce mutually as sensitive issues have already been sorted between the parties mutually.
8. It is a win-win situation for both the parties
As the parties have mutually decided to separate and other sensitive issues such as property issues, child custody, etc. have already been settled between them hence neither party is at a loss.
Disadvantages of mutual divorce
1. Difficult to withdraw the consent after the first motion: After the first move the parties are given a cooling-off period and either party may decide to change their mind. Now, if one of the parties unilaterally withdraws their consent the other party may suffer prejudice that could be irreversible.
In a case, the husband acted to the wife’s prejudice by accepting the terms of compromise and he withdrew his appeal after paying half of the alimony. The court held that the wife was “stopped from withdrawing her consent now”. Recently, the Nagpur bench of the High Court of Bombay stated that the mutual consent given for divorce cannot be unilaterally withdrawn by a spouse without a sufficient and just cause[iii].
In another case, the court clarified that the agreement between the parties to mutually settle their dispute is binding and a form of undertaking. If either party unilaterally withdraws the consent, then it would be considered as a breach of the undertaking made before the court of law. It shall result in civil contempt of court. It can be only on a just and reasonable ground, taking into account that the other party must not suffer prejudice[iv].
2. No relief for the decision taken by mistake: Recently, the Family Court turned down the plea of a woman refusing to accept the terms she had signed for seeking a mutual divorce. She claimed that she could not understand the terms and she was in shock that her husband had filed for mutual divorce. No relief was granted to the woman by the court[v].
3. Cooling-off period: The parties seeking a mutual divorce have to follow the cooling-off period before getting a mutual divorce decree. In some cases, the cooling-off period might cause mental agony to the parties. Note that it can be waived by the court only if it is satisfied that an appropriate case has been made out based on certain conditions[vi].
Divorce is a serious matter and it should be used only as a last resort. Divorce by mutual consent has many advantages as discussed above and it is indeed the best way of divorce if the parties have decided mutually to get separated. It saves time and money as the parties can mutually settle their issues and put an end to their marriage.
[i] Section 23(1)(bb) of the Hindu Marriage Act,1955
[ii] https://www.thehindu.com/news/cities/Delhi/cant-force-divorce-by-mutual-consent-hc/article23897518.ece
[iii] https://www.hindustantimes.com/cities/mumbai-news/mutual-consent-for-divorce-can-t-be-unilaterally-withdrawn-without-sufficient-cause-hc-101644690648989.html
[iv] Rajat Gupta vs. Rupali Gupta, 2018 SCC OnLine Del. 9005
[v] https://www.dnaindia.com/mumbai/report-no-relief-for-woman-who-agreed-to-mutual-consent-divorce-by-mistake-2087364
[vi] Amardeep Singh v. Harveen Kaur on 12 September, 2017
