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Most frequent questions and answers
- In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the party currently resides. It is imperative that the decree by foreign courts should not be inconclusive of Section- 13 of the Civil Procedure Code, 1908. In fact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit for camera proceedings.
Applies to religion
Hindu Marriage Act, 1955
Hindus, Buddhists, Sikhs and Jains
Muslim Marriages Act, 1939
Parsi Marriage and Divorce Act, 1936
Indian Divorce Act, 1869
Special Marriage Act, 1956
Documents required in Mutual Consent Divorce
- Documents as proof of marriage
- Marriage Invitation Cards
- Two Joint Marriage Photograph
- Marriage Ceremony Photo
- Marriage Certificate (if available)
- Documents of identity & Address
- Adhaar Card and/or any other current address and photo ID proof of both parties
- Proof of the last residence in the jurisdiction where you have applied for divorce. i.e if your current address is different from your permanent address
- Passport size photographs of both the parties
- Evidence of separation for one year or more.
- Evidence of unsuccessful attempts of reconciliation
- Proof of Income and assets
- Income tax statements both the parties – last three years
- Profession/business and current income
- Family background of both the parties
- Assets owned jointly or separately by both the parties
- Birth Certificate of the child if you have any
Other documents as required by the lawyer
Here is the seven-step process for a mutual consent divorce under Section 13B of the Hindu Marriage Act, 1955
Step 1 – Both Spouses need to put a signed petition requesting the dissolution of their marriage before the court of law. You need the help of a divorce lawyer. You may also disclose that all attempts to save your marriage have been futile and you are mutually agreeing for the dissolution.
Step 2 – Both parties appear in the family court. The court will analyze the petition and the documents. In some cases, the court may recommend mediation to reconcile relations. Once it proved that it’s irreconcilable, divorce proceedings will begin.
Step 3 – Once the court is satisfied with the petition and documents, it orders both parties to record a statement under oath.
Step 4 – After the court analyses the petition and it’s satisfactory the courts may order the statement of the parties to be recorded under oath.
Step 5 – The court passes an order on the first motion, once the statements are recorded. Both parties have 6 months’ before filing the second motion.
Step 6 – If both the parties decide to go ahead with the divorce procedure the course passes second motion after 6 months period and gets on with the final hearing.
Step 7- Decree of Divorce?
The court wants to be sure that there is no conflict between both parties about the following issues-
- Child custody
- Property or any other marital issue.
Once assured the court will pass a decree of divorce and declare the dissolution of marriage
Six months. If you have jointly presented a petition for mutual consent divorce under section 13-B, the court will give six months cooling off period after your first motion for the couple to think through and decide. After 6 months you can apply for a second motion anytime within 18 months to get your final hearing and divorce decree.
Reducing the six month cooling off period is purely at the discretion of the court. Earlier it was mandatory but in 2017 the supreme court of India in Amardeep Singh vs. Harveen Kaur CA NO, 11158 OF 2017 suggested that it can be waived off based on the facts of the case and situation.
The court has not mentioned any ground under which the waiver can be granted but in general, the following conditions have been considered in past-
- When any of the couples were settling off abroad
- When the wife was getting married (a woman is often considered a victim of divorce)
- Urgent Medical conditions
As mentioned earlier, these are not defined by any law. It depends on the judge or how strongly your lawyer presents your case and the validity of the grounds under which you are applying for a waiver. In some cases, people are able to get their divorce within 2-3 weeks.
On the contrary, if you have children, then the court will take time to consider your case. Before granting any waiver the court would like to be absolutely sure about
- Legal and Physical custody of your child,
- Their upbringing and well being,
- Division of your property, maintenance for the wife and children,
- Your joint liabilities,
Alimony and other factors
Divorce of a christian couple is governed by the Divorce Act, 1869. Here the parties can mutually present the petition before the district court. In their petition they have to state that they have been staying away for a period of two years or more. They need to show that are unable to live together and want to mutually end the marriage. After the expiry of six months and before 18 months, if the court is satisfied after hearing both the parties, then it may pass the divorce decree.
A mutual divorce can be filed if at least 1 year has been passed from the date of marriage and the spouses are living separately for the same period.
When the decree for mutual consent divorce is passed and there is no appeal filed against the decision or the time to file an appeal has passed i.e. 90 days, the divorced husband and wife can easily get married again.