How Can I Get Divorce Easily ?

There are two types of procedures for dissolution of marriages in India as provided by the law, of which Mutual Consent could be considered as the easier way. However, the total the time period required for its finalisation, may also take at least 18 months. At least, now with the recent developments, the court acknowledges that the 6 month cooling-off period could be prolonged torture for some couples who have irreconcilable differences.

The 1976 Amendment to Section 13B of the Hindu Marriage Act, 1955,  provides that the couple may apply for a divorce by mutual consent, if they have agreed upon ending their marriage in a hassle-free manner and without having to go through the long process of litigation.

What is divorce by ‘mutual consent’ ?

When parties to a marriage mutually agree to dissolve their marriage and to this account have filed a partition jointly in the Court, it shall be referred to as a mutual consent divorce.

Section 13B, Hindu Marriage Act, 1955

Conditions necessary: 

• The parties applying for divorce must be living separately from each other for a period of not less than a year immediately before the petition has been filed.
• The marriage of the couple was solemnised as per the provisions of the Hindu Marriage Act, 1955.
• The parties to the married had willingly consented to the marriage.
• The parties should agree to divorce mutually throughout the proceedings of the divorce, till the judgement has been passed as was decided in the case of Sureshtha Devi v Om Prakash (AIR 1992 SC 1904)

Procedure to apply for a Divorce by Mutual Consent-

• The process of divorce by Mutual Consent would start by applying for a petition under the Section 13B of the Hindu Marriage Act, 1955 before the court of appropriate jurisdiction, by both parties jointly. The parties, nowadays, have an option to file a divorce online as well. For further information on the subject, you may contact us at Sharks of Law.
• Such mutual agreement must include the terms of settlement related to the rights and obligations of the parties, which are namely: 
• Custody of the child (could be either joint/shared or even exclusive);
• Maintenance or Alimony (no limit has been prescribed under the law);
• Costs for the process of litigation; and 
• Division of the Property owned by the couple
• The said divorce petition could be filed in the family court in the district, where-
• The couple had their marriage solemnised;
• The couple had cohabited; or 
• The wife has been residing at the time of presenting the petition.
• The Court shall record the statements of the parties after receiving the petition for mutual consent divorce. After which the first motion would be passed. 
• After the passing of the First Motion, a cooling off period between 6 to 18 months, from the date when the First Motion has been passed, will be granted.
• If during such period, the couple continues to wish for divorce, they may apply for a Second Motion, where the parties would have to be present during the court proceedings to provide their consent and have their statements recorded.
• Afterwards, if the Court is satisfied, it shall pass a decree of divorce.

Some Important points about Divorce by Mutual Consent-

• Smruti Pahariya v. Sanjay Pahariya (2009) 13 SCC 338- If one of the parties have not appeared after the 6 months period is over, the Court cannot presume consent of the parties.
• Hirabai Bharucha v. Pirojsha Bharucha AIR (32) 1945 Bombay 537- The settlement terms should according to the public policy and not against it.
• The parties to the divorce could remarry after a period of three months has passed after the decree has been passed and no appeal has been filed.
• The total time which could be taken when granting a divorce from the date the petition was filed could vary from 6 months to an year varying on the facts of the case.

Is cooling-off period mandatory ?

Cooling off period could be understood as a chance of reconciliation between the parties before the final decree of divorce is granted. The Cooling off period could be waived off under certain circumstances-

• In the case of Amandeep Singh v Harveen Kaur (SC, 2017), the Apex Court held that the cooling-off period provided is but a directory provision and not a mandatory provision, which could be waived off as per the facts of the case. The Court laid down certain conditions, where the provision could be waived off by the Court-

1. All efforts of mediation/conciliation between the partners have been exhausted and the parties are adamant to separate;
2. The parties have willingly settled their issues including the matters related to alimony, child custody or any other matters between them related to any property or debt, etc.
3. If such waiting period is only going to prolong their agony.
4. The application for waiver of the cooling off could be filed one week after the first motion has been passed, 

Im case the above conditions are satisfied,  the waiting period before the second motion could be waived off at the discretion of the concerned Court.

Summing up, the contested divorce is like any other case, where the parties would have to prove the allegations over the other party, which sometimes takes years to come to a conclusion. Filing a joint divorce petition, would not only sour the relations any further, but would also help solving the issue as early as possible shortening the agony which the parties and their families would have to go through. 

In case you are planning to file a divorce or have decided as a couple to separate your ways in a peaceful manner, it is advised that seek legal consultation from an experienced divorce lawyer in your area, who could help you understand the facts of your case as well as the options which are available to you, or even help you file an online divorce. At Sharks of Law, you could talk to a lawyer at any time at your convenience, i.e. by both online and offline modes, in person or by call, which shall help you make up your mind. 

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