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My husband and I have agreed for mutual consent divorce

By: Shivendra Pratap Singh
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My husband and I have agreed for mutual consent divorce and want to move a petition before the family court. Please guide how to file such a case before the family court.

Question from: West Bengal

Section 13-B of the Hindu Marriage Act 1955 [HMA] provides a remedy to live apart by mutual consent. This is a divorce by the mutual consent of parties without proving the guilt. Section 13 of the HMA provides some grounds of divorce which is based upon the guilt theory. A spouse can get divorce only after proving the guilt of other spouse. If he/she fails to prove the guilt of wife/husband the court will not pass divorce decree. But in mutual consent divorce spouses file divorce petition jointly without alleging the guilt.

Grounds of mutual consent divorce

Spouses must prove in the affidavit that they are living separately for more than one years. They have not been able to live together they have mutually agreed that the marriage should be dissolved. It is mandatory that husband and wife are agreed for mutual consent divorce. Disclosure of above facts are mandatory in the petition for mutual consent divorce. The parties also produce an affidavit along with the divorce petition.

First & Second motion

When the parties present their petition it is called the first motion. The court admits the petition in the first motion and gives at least six months time. If the parties do not withdraw their petition and appear before the court, it is called second motion. In the second mother the court again gives six to eighteen months time. The time period is variable and depends upon circumstances of the case. Court seeks second thought from the parties before getting divorce therefore gives such a time in second motion.

Withdrawal of petition

During the first and second motion either party can withdraw his/her petition by stating that he/she is not agreed for mutual consent divorce. Mutual agreement is the essence of mutual consent divorce. Therefore, free consent of party is mandatory therein. If a party withdraws his/her consent then the court cannot pass decree of mutual consent divorce. In this situation aggrieved party can file regular divorce suit under section 13 of HMA.

Decree of mutual consent divorce

If either or both parties did not withdraw their petition the court will pass divorce decree. The court passes such a decree on the terms and conditions mutually agreed by the parties. Spouses are free to settle their legal rights such as maintenance, possession of movable & immovable properties, custody of child (if any) and other matrimonial rights. If wife has waived her right of maintenance in the divorce petition thereafter, she cannot claim maintenance after decree of divorce.

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