Proceedings for the divorce will be more peaceful if both parties to the marriage agree on the dissolution of marriage in a friendly manner rather than battling it out in the court. Provided under Section 13B of the Hindu Marriage Act, 1955 divorce could be filed by both parties to the marriage by mutual consent.
The provisions for divorce by mutual consent mentioned under Section 13B of HMA are similar to that of the grounds provided under section 28 of the Special Marriage Act, 1954. As per the provision under Section 13B(2), the parties must wait for at least a period of 6 months, also known as the cooling off period, after presenting the petition before the court and before a period of 18 months has passed.
Grounds required for petition to be filed for divorce by mutual consent-
the parties have to bring a joint petition before the court for divorce
the parties to the marriage must be living apart for a period of not less than one year
It is not possible for the parties to cohabitate together.
the parties should have mutually decided that the marriage can not continue and must be dissolved
the parties have to wait for a period of six months before the proceedings of the court. This six months period would begin after the parties have filed for divorce petition with the court.
Steps to be followed while filing for divorce by mutual consent
Drafting and filing the petition- an application is required to be submitted in the family court along with the Court fees as has been provided. It is advised to ensure legal assistance from experienced Divorce Lawyers in Mumbai or Divorce Lawyers in Bangalore, who could provide you with guidance and advice while drafting the petition. The petition for divorce is required to be filed jointly by the concerned parties, after which a notice would be served to the family court by both parties. This joint petition should be signed by both parties to the marriage.
Hearing of the court- at the stage of hearing, both parties shall appear before the family court with their lawyers present.The court would then examine the petition and also try to bring reconciliation before starting the procedure for divorce.
First motion- after the statement of the parties has been recorded, the court passes the first motion. After the first motion, the couple would have to wait for a period of six months before they could file for second motion. It must be understood that the second motion should be submitted before the expiry of the period of 18 months from the date the first motion has been passed.
Second motion and final hearing- Once the parties to the marriage have decided to file for second motion, the final hearing for the divorce petition continues. Also, in a recent case, the Supreme Court has decided that the period of six months can be avoided if the court deems it fit.
Decree of divorce- after the couple have given their statement affirming that they do not wish to continue the marriage and have sorted out all other marital obligations such as custody of the child, maintenance, sharing of property,etc. With the Court’s satisfaction a decree of divorce would be passed, hence, declaring the dissolution of marriage.
Cancellation of divorce petition and cooling off period-
If during the cooling off period of six months which is after the first motion or even at the end of the reconciliation period, in case the two parties to the marriage still wish to continue their divorce petition, then they would have to file for the second motion or the final hearing of the divorce petition.
If the second motion is not filed within a period of 18 months after the first motion has been passed, in such a situation no decree of divorce would be passed by the court. It must be understood that either of the parties to the marriage can withdraw their consent for divorce at any stage during the trial.
Conclusion
It can be concluded from the above discussion that the concept of cooling off period during the divorce proceedings was added in order to provide the couple a last chance to solve their issues and save their marriage.
If during the cooling off period, the proceedings are not in motion, the parties can try to sort out their issues and save their marriage. For further information regarding the provisions of divorce by mutual consent as provided by the law, it is advised to seek legal guidance from Divorce Lawyers in Hyderabad.
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