Legal Advice

Filing mutual consent divorce in Kolkata

Question: I live abroad but now due to lockdown, I am with my husband in Kolkata. Due to a lack of compatibility, I want to get a divorce from him. We were married in Feb 2018. How can I initiate a mutual divorce and is there any online procedure?

Advise

Under Section 13-B of the Hindu Marriage Act, you can initiate a suit for mutual consent divorce. It is essential for both parties to agree to the divorce, as mutual consent of spouses is mandatory. If your husband does not consent, you cannot file a petition under Section 13-B.

There are three essential conditions for a mutual consent divorce under Section 13-B:

  • The parties have been living separately for one year or more
  • They have not been able to live together, and mutually agree that the marriage should be dissolved
  • They have mutually agreed upon the terms and conditions of the divorce settlement.

The term “living separately” has a broad interpretation, and even if you are currently living with your husband due to the lockdown, you may still qualify for a mutual consent divorce if you have not had a marital relationship for one year or more.

The process of mutual consent divorce is time-consuming and requires a cooling period of six to eighteen months for the parties to rethink their decision. If the parties still wish to proceed with the divorce after this period, and the court is satisfied that both parties have given their free consent, the court will grant a decree of divorce.

While there is no online facility for filing a mutual consent divorce in the district court, you can contact a lawyer to prepare a plaint and affidavit, which will be signed by both parties. Additionally, a deed containing the terms and conditions of the divorce settlement must also be prepared, covering issues such as maintenance, stridhan, and property division.

Shivendra Pratap Singh

Advocate

High Court Lucknow