Divorce by Mutual Consent

Divorce by Mutual Consent was brought by the India Parliament vide Amendment in the year 1976 in the Hindu Marriage Act.

As per Law, duration/time of obtaining the same is six months. Although, parties have the option of filing the second motion petition anytime between six months and eighteen months from the date of the filing of the Mutual Consent Divorce Petition.

Parties desirous of obtaining Divorce by Mutual Consent are always perplexed as to how to initiate the process, role of court, terms and conditions , issues of maintenance and child custody, the place where Petition can be filed and other allied questions. For the purpose clarity, you just need to understand following bullets point:-

Spouses should talk to each other about future course. If both spouses reach to a conclusion that marriage is not workable they should ease out the tension surrounding them and accept that their marriage has broken down. Forget the fear of society. Nobody knows the situation better than husband and wife themselves.
Accept that there can be agreement even in disagreement.

If there are child(ren) involved, the spouse should decide amongst themselves who is going to have the physical custody of the children, duration of visitation rights and interim custody during summer and winter vacations and other holidays. Both parents are equally competent to take the custody of the children. It’s the understanding and agreement between parties which prevails subject to the welfare of the minor child(ren). Parties can have an understanding of joint custody or shared parenting in mutual consent divorce process.

Next important aspect is the financial settlement. There are various aspects of financial settlement which includes alimony, maintenance, house, education expenses, higher education expenses, marriages, istridhan, joint investments, joint accounts and many other. We provide a platform to parties to discuss these issues in calm atmosphere and reach to their own solutions.

Petition for mutual consent divorce can be filed at any of the following place:-

Place where marriage had taken place

Place where husband and wife last resided together.

Place where wife is residing at the time of filing of the Petition

Once petition is filed, parties presence are required in the Court for recording of the statement. In the event one of the party is unable to come, such party can appear through power of attorney. Such power of attorney preferably should be a family member of the spouse. Once statement is recorded, it is commonly called First Motion has been granted.

After passing of first motion, parties are called upon to wait for six months period before moving Petition for second motion. This period is extendible unto eighteen months. This six months period in mutual consent divorce is generally called cooling-off period. Six months period are given to parties to think their relationship again. It is given for reconciliation.

After six months period, if parties have been unable to resolve their differences, they will have to appear in the Court again. Statement of parties would be recorded again.

During the period of six months i.e. before moving second motion, both parties have liberty to withdraw their consent.

After this Court passes an order dissolving the marriage by granting decree of divorce and thereby marriage stands dissolved.

Contested Divorce.

Contested Divorce implies that a party desirous of divorce may approach the family Court/Civil Court for the dissolution of marriage. The spouse seeking divorce has to take one of the grounds provided under the law of contested divorce.

There are different laws dealing with contested divorce for the different section of the Society. Hindu Marriage Act,1955 provides ground for divorce for Hindus which includes Sikh, Jain and Budh religion. Indian Divorce Act,1869, provides grounds for divorce for Christians.Broad grounds are as under:-

On the ground of Sexual intercourse other than Spouse by Respondent

On the ground of Cruelty by Respondent

On the ground of Desertion by Respondent

On the ground of Conversion to another religion by Respondent

On the ground of Unsoundness of mind or mental disorder of Respondent

On the ground of Virulent and Incurable form of leprosy of Respondent

On the ground of Venereal disease of Respondent

On the ground of Respondent renouncing the world

Divorce on the ground of Respondent is not heard for a period of seven years or more.

Besides above, there are couples of additional grounds for divorce available only to a wife.


Proceedings commence with filing a petition. Family Court/Civil Court causes a notice to be served on the opposite party for appearance.

On receipt of summons, opposite party has to appear in person and/or through a lawyer and file the response.

Court may try to resolve the differences between parties to start with by conducting conciliation or sending the matter to counselor/mediation center. If there is no settlement between parties, divorce case proceeds as per procedure.

Once initial allegation and response and counter allegations process are over, which is called pleading, the case is set up for evidence after determining issues of controversy between parties.

Party initiating contested divorce has to start with the evidence first. Another party is given a chance to cross-examination witness/es of the opposite party.

After that Respondent has to lead evidence. Similarly, cross-examination process is conducted by the lawyer of opposite side.

After the conclusion of the evidence, Final arguments are advanced by lawyers from both sides.

Then the court pronounces judgement. If party initiating divorce is able to prove the case, Family Court/Civil Court will grant the decree of Divorce.

Contested divorce requires expert lawyers either in prosecuting or defending divorce case. Such expert divorce lawyer guides, strategize and plan the whole action. Effective planning by divorce lawyers increases the probability of success in the trial of the case for a favorable outcome.

It is a long process requiring professional expertise. Good Lawyers tackle this challenging and arduous task with their expertise.

Restitution of Conjugal Rights.

It is another important remedy provided by law to the spouses. In cases, where one party leave the company and society of the other spouse, then a case for restitution of conjugal rights can be filed in the Court. The Court directs the defaulting spouse to join the company of the other spouse unless there is a strong reason justifying such withdrawal.

Contact Lawspedia for further information pertaining to Law relating to Family Law in India!