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leadindia011 · 5 months

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Nri Divorce Procedure

Indian men and women are increasingly choosing to marry NRIs. Indians who marry NRI brides and grooms do so out of a desire to relocate abroad and live a better life. According to statistics, every year 225 women from metro areas marry NRIs; of these, nearly 25 either want to dissolve their marriage or have husbands desert them because they are lying to them or withholding information. Given this, Indians marrying NRIs must understand the laws about NRI divorce.

The majority of Indian women are enamored with marrying non-resident Indians. Additionally, their parents hope to marry off their daughters to Indians living abroad who can offer a higher standard of living and a better home. The parents are willing to part with any amount of money for grooms who are based abroad. They lavish a great deal of money on the wedding and provide the boy's family with a dowry.

Causes of nonresidential divorce

The spouse of the non-resident Indian is already wed to someone else and might even have children who reside overseas with him. Rather than taking the bride with him, the groom typically leaves her with her parents. However, the girl's family requests a divorce from their daughter once the truth is revealed.

The spouses of NRIs overstate their possessions in the foreign country, such as their home, vehicle, and well-paying jobs, but they might be unable to support a family once they get married.

The lifestyle of the non-resident Indian spouse is too advanced for the Indian spouse to keep up with. Since they feel they are an inappropriate partner, incompatibility may be the reason for the NRI's divorce.

Which laws address divorce among NRIs?

In line with section 13-B of the Act, if both partners are Indian citizens and were married in line with the Hindu Marriage Act 1955, they may file for divorce by mutual consent.

If both spouses are residents of the United States of America or any other foreign country, they may seek a divorce with mutual consent under the nation's divorce laws about foreign marriages. By Indian law, a divorce can only be recognized with the consent of both parties.

Requirements for a divorce from an NRI

Both parties ask for an Indian NRI divorce decree.

A couple who is living overseas files for divorce in India during the divorce procedure.

One partner lives in India, and the other is an NRI.

Each of them is an NRI.

One is an NRI, and the other is a foreign national.

The NRI divorce procedure

The parties must submit a divorce petition to the court.

The parties must agree upon the maintenance amount and child custody for any children born out of the marriage beforehand.

Six months will elapse after the date of the plea presentation, also referred to as the first motion, in this case.

Following that, the parties must show up in court to formally confirm their mutually consenting divorce. This will verify the information.

The divorce petition may be withdrawn or returned by any party within six months of the second motion.

Options for NRI divorce that are available

NRI Divorce by mutual consent: In an NRI divorce, the petition for mutual consent is filed not under Indian law but under the laws of the foreign country where it is acquired. With the appropriate divorce legal advice, this is easily accomplished. The validity of the decree in an NRI divorce is contingent upon the court that issued it possessing appropriate jurisdiction over the case and fulfilling all necessary prerequisites. Other matters, such as child custody, asset division, and alimony/maintenance, will be settled amicably between the spouses in compliance with the foreign country's legal requirements.

If the divorce decree obtained from a foreign court does not comply with the requirements outlined in Section 13 of the CPC, it may be declared invalid and cannot be enforced in India. The court procedures can be handled by a lawyer using a power of attorney or by mutual consent, so traveling to India is not required. It's also advisable to select an online lawyer who is knowledgeable about Indian divorce laws that apply to non-resident Indians (NRIs), even if the divorce is happening overseas.

Lead Indiaoffers a range of legal services, such as online information and free legal advice. Here, you can ask a legal question and talk to a lawyer.

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nri divorce procedure.

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ncsharmalawfirm · 6 months

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How many days after divorce can you remarry in India?

Introduction

In the intricate legal landscape of India, the question of remarriage post-divorce is a crucial one. Delhi Divorce Lawyer plays a pivotal role in guiding individuals through this process, ensuring a smooth transition from the end of one chapter to the beginning of another.

Understanding the Legal Landscape in India

The Waiting Period in Accordance with the Law

In India, the legal process of divorce involves several steps, and the timeline for remarriage is guided by the law. The Hindu Marriage Act, 1955, stipulates a waiting period before either party can enter into a new marital alliance. Specifically, the law mandates a waiting period of 90 days after the divorce decree has been granted. This period, often referred to as the "cooling-off" period, is designed to give couples a chance to reconsider their decision and potentially reconcile.

Special Cases: Mutual Consent Divorces

In cases of mutual consent divorces, where both parties amicably agree to end their marriage, the waiting period may be shortened. Under Section 13-B of the Hindu Marriage Act, couples can seek a waiver of the 90-day waiting period if they can provide a reasonable cause for expedited dissolution of their marriage. This provision allows for a faster resolution, enabling individuals to move on with their lives more promptly.

Regional Variations: The Delhi Perspective

Navigating the Legal Terrain in Delhi

If you're in the bustling metropolis of Delhi and contemplating remarriage post-divorce, it's essential to be aware of the specific legalities governing this process in the capital. Delhi, being a cosmopolitan hub, follows the national guidelines laid out in the Hindu Marriage Act, with the 90-day waiting period being a standard requirement.

Seeking Guidance from a Delhi Divorce Lawyer

In the complex legal landscape of Delhi, consulting with a Best Delhi divorce lawyer becomes crucial for a seamless transition from marriage to remarriage. These legal experts are well-versed in the intricacies of divorce proceedings and can guide you through the process, ensuring compliance with all legal requirements.

Why Choose Us

Navigating the intricacies of divorce and remarriage requires legal expertise and guidance. At NC Sharma Law Firm, we understand the nuances of Indian family law, providing comprehensive support to individuals seeking clarity on remarriage timelines. Choose us for:

Expertise: Our seasoned lawyers bring years of experience in family law, ensuring accurate guidance tailored to your unique situation.

Timely Assistance: We recognize the urgency surrounding legal matters. Our team is committed to providing timely and efficient services, expediting your journey through the legal process.

Personalized Solutions: Every case is unique. We pride ourselves on offering personalized solutions, addressing your specific concerns with a bespoke legal approach.

Conclusion

The duration one must wait before remarrying in India is a multifaceted aspect, involving legal, personal, and religious considerations. Navigating this terrain requires the expertise of a seasoned Delhi Divorce Lawyer, and at NC Sharma Law Firm, we stand ready to guide you through every step of this journey.

Reference URL :- How many days after divorce can you remarry in India?

#Delhi Divorce Lawyer #Best Delhi divorce lawyer

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legalupanishad · 10 months

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Inability to Bear Child not a Ground for Divorce: Patna HC

This article on 'Inability to Bear Child Not a Ground for Divorce: Patna HC' was written by Priyanka Jaipuria, an intern at Legal Upanishad.

INTRODUCTION

Women are still considered largely as reproducers, despite being independent and often earning more than their husbands. Their role as homemakers is acknowledged, but it is often seen as their moral obligation. Marriage strengthens some legal obligations and privileges for both parties. A frequent misconception is that divorce is the outcome of a failed marriage. The foundation of a marriage crumbles for unknown reasons, resulting in divorce. To be successful in your divorce case, you must request legal separation for legitimate reasons and under compelling conditions. While stressing the key provisions of Section-13 of the Hindu Marriage Act (HMA), the High Court of Patna declared in a recent case (Sonu Kumar v. Rina Devi) in July 2023 that a wife’s inability to bear children is neither impotence nor a reason for divorce under the HMA. By rejecting divorce on these grounds, the court went on to emphasize that couples can seek adoption or other child-bearing options and that infertility is a normal part of marital life.

FACTS OF THE CASE

Observation made to the Court: The respondent-wife is neither ready to cohabit nor is there any chance of her becoming a mother. The petitioner-husband is a youthful guy, 24 years old and in a healthy state, who requires cohabitation and has the yearning to grow into a father. It was asserted that the plaintiff and the respondent’s marriage took place in 2015. The husband made a number of accusations against the wife, including: - The petitioner claimed that during her quick visit to their marital residence, his wife behaved improperly with his parents and other close relatives. - In addition, the petitioner stated that his wife declined to cohabit and complete the marriage, claiming that she just wanted to “break her virginity” rather than have a family. - In addition, the petitioner alleged that, in spite of protests from family members, his wife held secret meetings with residents of her community. - The husband said that despite his repeated efforts to get his wife to return to their marital residence, she constantly resisted. - Despite all else, he brought his wife to a doctor in Muzaffarpur when she told him of her illness and requested monetary support for medication. He learned that she had a cyst in her uterus and that her body’s normal egg-formation cycle was also compromised. She was less inclined to become a mother in the years to come because of her current health condition. The husband had petitioned the family court for the breakdown of the marriage on charges of cruelty. The respondent never showed up in court in spite of receiving notice, thus she was adjudicated ex-parte (which indicates that the judge can hear the matter without the involvement of the other side and render a judgment in court). However, the court struck out the husband’s claim since he was unable to support his claims of his wife’s cruelty. Later, feeling aggrieved by the decision of the Family Court, the husband filed a petition in the High Court of Patna.

ISSUES

- Whether divorce can be taken on the ground of infertility; or - Whether a court can grant a divorce on the ground of desertion within two years of marriage?

LAWS INVOLVED

- Primarily: Section-13 of the HMA deals with grounds for divorce. - Secondarily: Section-9 of the HMA deals with the provision for restitution of conjugal rights. Section-13(1)(b) of the HMA deals with the provision for desertion.

JUDGEMENT

Infertility is not a valid reason for divorce pursuant to the Hindu Marriage Act, according to a bench of Justices Jitendra Kumar and P. B. Bajanthri. Refutation of Desertion: The Court took note of the contentions and observed that the application for divorce was submitted within two years of the marriage. Out of which, the couple had only been cohabitating for two months. In accordance with Section-13(1)(b) of the law, which mandates persistent desertion for a minimum of two years, the Court found that the foundation for desertion was not proven. Contracting any Disease after Marriage: The husband was keen on divorcing her and getting remarried to another woman so he could have children. It was also mentioned that the wife had a cyst in her uterus and couldn’t have a kid. The court ruled that neither spouse has any control over contracting a sickness while the marriage is still active. The Petitioner made no attempts to get RCR: The Court further observed that the husband’s allegation of refusing to cohabit was unsupported by the fact that he had not filed any legal motion for the restoration of conjugal rights according to Section-9 of the HMA. Absence of Hard Evidence: Last but not least, the Court discovered no specific instances of behaviour that constituted cruelty, with the exception of the wife’s alleged reluctance to cohabitate with the husband. The Court stated, “Inability to bear child is neither impotence nor any ground for dissolving the marriage. Such a possibility of inability to bear child may be part of the marital life of anyone, and parties to a marriage may resort to other means of having a child, such as adoption. Divorce is not provided as per the Hindu Marriage Act in such circumstances”. As a result, the Court denied the man’s request for review of the family court’s judgement to deny his divorce petition submitted in accordance with Section-13 of the statute.

CONCLUSION

Divorce is the most challenging experience a person can go through and has a big negative impact on family life. Marriage isn’t about bearing kids, as the judge in the current instance correctly noted. Only a couple may decide to get pregnant. Marriage is about a lot more than just producing kids. Again, as the court noted, the woman’s physical state is not in her control, so she is not at all to blame for being incapable of conceiving. Being a husband, he has a duty to support and encourage his wife through any difficult times. Other alternatives for having children include adoption, surrogacy, and others. Only the wife's inability to bear children can be used to justify divorce. It’s reassuring to see the court make such a thoughtful and impartial decision that affirms the public’s faith in the legal system. Marriage is based on shared responsibility between men and women, and if they do not understand these obligations, then small problems like these will cause divorce in our culture.

REFERENCES

Hitesh Sharma and Dr. Tara Singhal, “Legal Rights of Girls in Wedding”, 9(1), Cosmos- An International Journal of Art & Higher Education (2020). Bhavya Singh, “Inability to Bear a Child is Part of Marital Life, not a Ground for Dissolving Marriage: Patna High Court”, Live Law, 25 July 2023, available at: https://www.livelaw.in/high-court/patna-high-court/patna-high-court-infertility-divorce-ground-section-13-hindu-marriage-act-233621?infinitescroll=1 (Last visited on August 3, 2023). Kalyani Ganesan,“Inability to Bear Child not Grounds for Divorce: Patna HC”, She The People, 27 July 2023, available at: https://www.shethepeople.tv/news/patna-hc-on-divorce-over-infertility (Last visited on August 3, 2023). Simranjeet, “Inability to Bear a Child is neither Impotence nor a Ground for Dissolving Marriage: Patna High Court”, SCC Online Blog, 27 July 2023, available at: https://www.scconline.com/blog/post/2023/07/27/inability-to-bear-child-is-neither-impotence-nor-a-ground-for-dissolving-marriage-patna-hc/#:~:text=TheCourtobservedthatthe,achildsuchasadoption (Last visited on August 3, 2023). Read the full article

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top-divorce-lawyer · 10 months

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How Long Is The Waiting Period For Divorce In India ?

As provided under the Hindu Marriage Act, 1955, both the husband and the wife have a right to have their marriage dissolved by a decree of divorce on the grounds mentioned under Section 13. When a divorce is applied for by only one party, it is called a contested divorce. But sometimes the couple agrees that they are unable to continue with their marriage and files a joint petition for the dissolution of their marriage, as has been provided under Section 28 of the Act of 1954. It is known as the divorce by mutual consent. For further information on the subject, it is advised that you seek legal advice from an experienced divorce lawyers in gurgaon.

To apply for a divorce petition either against your partner or by mutual consent, the first and foremost step you have to take is to appoint a divorce lawyer in Noida or in the city you are residing in. It is most important that you understand the grounds for divorce, the procedure for divorce, or any other law related to divorce law, which could be explained by an experienced divorce lawyers in ghaziabad or the area where you are filing for divorce.

Conditions provided under Section 13-B of the Hindu Marriage Act

The couple shall live separately for one year or more.

They are unable to continue living together.

Both husband and wife have agreed that their marriage can’t be continued and have decided mutually to go their separate ways. Under these circumstances, a divorce by mutual consent could be filed.

Where to file for divorce

The petition for divorce from the partner may be submitted in

The court where the couple last lived

The court whose jurisdiction the marriage was solemnised under

The court where the wife is residing at present.

Procedure for divorce by mutual consent

To file the petition

Firstly, a joint petition for the dissolution of marriage has to be presented by both parties to the family court. The grounds for filing the petition could be that the couple has jointly decided to dissolve their marriage and has been living separately for at least a year.

II. Inspection of the Petition

After the petition has been filed, the parties have to appear before the family court.

The parties shall be represented by their respective lawyers.

The petition and the documents shall be observed by the court.

The Court could attempt reconciliation among the spouses; however, if there is no possibility for reconciliation, the matter shall be forwarded for divorce proceedings.

III. Recording of statements

After the court scrutinizes the petition, it shall order the statement of the parties on oath.

IV. First Motion and the period of 6 Months

After the statements are recorded by the court, the order for the First Motion will be passed by the Court.

A period of six months will be ordered by the court for the parties to cool down and to decide again about the matter of the divorce with a calm mind, after which, if they wish to still continue with the divorce, they can file for a second motion.

From the date on which the divorce petition was filed, a maximum period of 18 months will be provided for filing a second motion.

V Second Motion and final Hearing

If the parties have chosen to proceed with the divorce, they can show up for a second motion, which might start the process for the final hearings.

The Supreme Court recently held in a judgment that the period of six months could be waived off in case the parties have mutually decided to part ways and are living separately for some time.

Therefore, if the parties have settled their differences, such as the custody of the child or any other issue between the parties, including the financial settlements, etc., the period of 6 months can be waived.

Or when the court is of the opinion that forcing a six-month waiting period would only prolong their suffering, the period of six months can be waived off.

VI Decree of Divorce:

In a divorce by mutual consent, the most important condition for the parties is that they must provide their consent and there will be no difference in opinion on the matters related to the issues, including custody of child, alimony, maintenance, etc. Hence, the agreement between the partners must be there in relation to the dissolution of marriage.

If the court is satisfied that there is no possibility of reconciliation between the parties, it can pass a decree of divorce and declare the dissolution of marriage.

Divorce is as important a decision as marriage. Therefore, before taking the ultimate step, it is advised to seek the opinion of an experienced divorce lawyer in Hyderabad.or the city where you are opting to file your case, so that you will be aware of what you are getting into and what the different options are available to you as provided by the law.

Lead India offers you a team of experienced lawyers who have been successfully dealing with cases involving divorce, matrimonial issues, child custody cases, etc. Hence, if you wish to talk to a lawyer or seek free legal advice, you may contact us.

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#divorce lawyers in ghaziabad #divorce lawyers in gurgaon #divorce lawyer in Hyderabad.

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bestcourtmarriage · 11 months

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How To Cancel An Arya Samaj Marriage Certificate

The usual rule is that you must adhere to a precise process in order to cancel an Arya Samaj marriage certificate. The following general instructions can help you revoke an Arya Samaj marriage certificate:

Gather the necessary paperwork: Gather all the paperwork you'll need for your Arya Samaj marriage, such as the original marriage certificate, the spouses' identification cards, and any additional marriage-related documentation.

Call the Arya Samaj at: Make contact with the Arya Samaj where the wedding was held. To learn more about the cancellation procedure, you can call, email, or go in person to their office. The particular instructions and forms needed for cancellation will be given to you by them.

Fill out the form for cancellation: Find the cancellation form at the Arya Samaj and fill it out completely. Give complete facts about the marriage, including the names of the partners, the wedding day, and any other information required.

Complete the cancellation form, and then submit it to the Arya Samaj with all necessary supporting documentation. Make sure to provide all the paperwork that the Arya Samaj has requested.

Pay any required fees: Cancelling a marriage certificate may include paying a charge. Ask the Arya Samaj about the costs when you speak with them, and then follow their directions for making the necessary payment.

Observe any extra steps: There can be more steps necessary to rescind the certificate, depending on the Arya Samaj's specific procedures and local laws. It's crucial to adhere to their instructions and satisfy any additional criteria they impose.

Obtain cancellation confirmation: The Arya Samaj will give you a cancellation confirmation or a certificate declaring that the marriage certificate has been cancelled once they have processed your cancellation request. Keep a copy of this document on hand in case you need it in the future.

It's crucial to speak directly with the Arya Samaj you worked with in order to obtain correct and current information about the cancellation process, as it may differ slightly depending on which branch you interacted with. It's important to note that the marriage may not necessarily be legally dissolved if the Arya Samaj marriage certificate is revoked. If you also want to formally end the marriage, you may need to speak with a lawyer and undertake the necessary legal steps in accordance with the laws of your nation.

How to obtain a divorce in unions governed by the traditions of the Arya Samaj:

Procedure for divorce to end According to the Hindu Marriage Act, Arya Samaj marriages follow the same divorce laws as Hindu marriages. If there is no mutual consent, spouses in a marriage have two options: they can seek a mutual divorce by consent, or they can oppose the divorce.

Mutual consent divorce within the Arya Samaj:

Section 13-B (divorce by mutual consent) allows for divorce on the following grounds: The parties to the marriage have mutually consented to dissolving the union after at least a year of living apart, being unable to cohabitate, and living separately.

The Arya Samaj's mutual consent divorce process:

Before the District court, a divorce petition must be jointly filed by both parties.

Before submitting the petition, a married couple should confirm that they have been living apart for at least a year. After the petition is approved, the parties must provide a statement.

Couples who are divorcing amicably must explain why they are unable to cohabitate and state in the petition that they have been unable to cohabitate and that they have jointly decided the marriage should end.

The court will set a date for hearing from the parties after a cooling-off period of six months but no longer than eighteen months.

The petition is deemed to have been withdrawn if the case is not filed or if the parties fail to appear in court on the scheduled date(s). The court may issue a divorce judgment pronouncing the marriage to be dissolved after hearing from the parties and being satisfied.

If the couples want to do a Court Marriage, then the Court Marriage Process should be followed. Arya Samaj Marriage can also be done.

To address the issue, Lead Indiaprovides information, legal services, and free legal advice. To get the b

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christenalux · 1 year

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How to get a divorce easily in Kerala?

Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court.

Mutual consent means that both parties agree to peaceful separation. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolving it legally.

Seek the best family divorce lawyers with a good reputation and strong client testimonials.

#Family divorce lawyers kottayam

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mvkeel · 1 year

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Section 21A Hindu Marriage Act 1955 - Power to transfer petitions in certain cases

#HinduMarriageAct #HMA

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seemabhatnagar · 1 year

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Divorce and Paternity Test

Background of the case

Aparna Ajinkya Firodia v. Ajinkya Arun Firodia

The couple got married on 23.11.2005 and during the subsistence of marriage two sons were born, elder son on 21.12.2009 and younger one born on 17.07.2013.

Initially this was the case of #Divorce filed under Section Sections 13(1)(i) and (ia) of the #Hindu Marriage Act, 1955 on 01.06.2017 by the Husband Ajinkya Arun Firodia before the Family Court Pune and was also seeking custody of both sons. The ground of divorce was wife was having adulterous relationship.

During the pendency of the divorce petition husband filed an application on 09.11.2020 before Family Court Pune seeking DNA test on younger son to find out the Paternity of the child and also to substantiate his averment of infidelity on the part of the Wife.

Husband happened to discover the infidelity through Whatsapp messages, teleconversation and Personal diary of the wife. Husband caused DNA of the younger child conducted in a private laboratory and the result indicated probability of paternity as 0%.

The wife opposed the application of the husband through an contending that the respondent had not made out a prima-facie case requiring the Court to exercise its discretion to direct DNA test to be conducted.

However, the Family Court allowed the application of conducting DNA Test on the younger child of the husband on 12.08.2021 and same was confirmed by the #Bombay High Court(HC) on 22.11.2021.

Aggrieved by the order of Family Court Pune and Bombay High Court Present Civil Appeal is filed by the Appellant Wife before the Supreme Court of India.

Issue before the Apex Court:

Whether, the Family Court, Pune and the High Court of Judicature at Bombay, have rightly directing that a DNA test of Master Arjun be conducted?

Whether, on non-compliance on the part of the appellant of the direction to subject Master Arjun to DNA test, allegations of adultery as against her could be determined by drawing an adverse?

What order?

Apex Court Observed

Under the Indian legal spectrum, a husband is strongly presumed to be the father of a child born to his wife. The presumption can be overcome by evidence precluding that husband and wife had no access to each other at relevant time.

These days Courts are routinely confronted with petitions by husband seeking to disavow their paternity through DNA Evidence despite the fact they had long performed the social role of father to a child.

DNA testing can not be used as a short cut to establish infidelity that might have occurred over a decade ago.

In the present case it can’t be said that DNA test is the only way to establish infidelity on the part of the appellant wife, when husband is in the possession of other evidences and is willing to produce them during the proceeding of Divorce Petition.

In the divorce petition of the husband no where it is stated that he had no access to the wife and the relevant time. Wherefore, no prima facie case is made out by the respondent husband to justify a direction to conduct a DNA Test on Master Arjun.

No adverse inference can be drawn against the Appellant wife declining to subject Master Arjun to the Paternity Test.

Order of the Apex Court: The order of the Bombay High Court as well as Family Court Pune allowing conduct of paternity test on Master Arjun was set aside. And a cost of Rs.1 lac was imposed on the husband payable to the appellant wife within a month before the Family Court from 20.02.2023.

This order was passed by the bench of Hon’ble Justice V Ramasubramanian and Hon’ble Justice B V Nagarathna.

In this case Hon’ble Justice V Ramasubramanian gave separate but concurring opinion.

Observation of Justice V Ramasubramanian:

The dispute in this case is between the parties to the marriage and not between one party to the marriage and the child whose paternity is questioned.

The Court can’t sacrifice the best interest of the third party(Child) to the dispute in order to enable one of the parties to the marriage to have the benefit of fair trial.

Hence, the present appeal is allowed.

However, it will not preclude husband from leading any other evidence to establish the allegations made by him against the appellant in the divorce petition.

#divorce #dnatest #paternity #supremecourt #hindumarriageact

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legalchd · 2 years

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Quick Divorce procedures In India

If both husband and wife agrees to a quick divorce in India, the following quick divorce procedures is the only solution and quick divorce process in India.

Mutual Divorce - Mutual Divorce Form Agreement

Both Husband and Wife have to prepare a mutual compromise agreement to resolve all important issues, given below:

Amount of permanent/regular Alimony

Custody of Child

Handing over all stridden items like gold, gifts, articles, etc

Withdrawal of all pending litigation, cases and complaints

Quashing of all registered F.I.R against husbands and in-laws

Property rights

Child safety measures and maintenance

One time settlement amount

Procedure for mutual divorce in India Petition U/s 13-B

We have to file a joint Petition U/s 13-B of the Hindu Marriage Act. Mutual Consent Divorce Petition are available at Blog of Deepak Malhotra Advocate on mutual consent divorce draft petition.

First Motion Statement of Mutual Divorce

Both Husband and Wife have to record their first motion statement in the family court on the first day of mutual consent divorce case. On recording first motion statement, the Honorable Court fix next date of hearing after 6 months.

Application seeking coordination of 6 Months

After two weeks, we appy seeking coordination of 6 months period, based on past litigation and separation period. Draft copy of the application may be seen and downloaded by clicking on this link.

Second Motion Statement on Mutual Divorce

If it allows an application, it gives a very short date to record the second motion statement. Second motion statement is the last opportunity to rethink about the final decision of separation.

We need to read this statement carefully because on signing of this statement, it gives no further opportunity to any of the parties to amend any clause decided in the mutual divorce.

Quick Divorece Decree in few days

After recording a second motion, the Honorable court grant a decree of divorce and it is the only quick divorce procedure in India.

Apply a Certified copy of Divorce Decree

Once the Honorable Family Court decides, apply 4 to 5 copies of divorce decree

Purpose of applying certified copies of Divorce Decree

They require the certified copies of various purposes like Change of husband’s name from passport, Change of status in Aadhar card, Gas connection, removal of name from nomination in bank accounts, removal of beneficiary in properties, pension benefits, gratuity and Provident fund benefits.

When a Spouse can remarry?

A Spouse can remarry with another woman or man on receipt of a certified copy of Divorce with Mutual Consent under section 13-B of the Hindu Marriage Act. In case of Divorce under section 13 of Hindu Marriage Act, a spouse has to wait for at least 90 days.

#law #divorce lawyer

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highcourtlawyers · 2 years

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NOTICE OF INTENDED MARRIAGE U/SEC 5 OF THE SPECIAL MARRIAGE ACT “PRIOR” TO SOLEMNISATION OF MARRIAGE: MADRAS HIGH COURT

Recently in the case of S. Sarath Kumar v The District Collector and Another, The Madras High Court observed that the conditions provided under Section 4 of the Special Marriage Act and the procedure thereof mentioned in Sections 5-13 have to be mandatorily complied with, thereby denying the application for the registration of the marriage under the Act.

In the present case, the procedure under Sec 5 was breached, i.e.” notice of intended marriage”, the Bench of Justice GR Swaminathan observed, that there is a sequence provided and the procedure shall be followed as such. In the present case, the parties performed the so-called marriage and then gave notice under section 5 of the Act. As the language of Section 5 clearly states, the petitioner did not marry Ms. Lediya under The Special Marriage Act, 1954. And thus cannot avail of the benefits provided under Section 4 of the Act.

Facts of the case

l The petitioner belonged to the Scheduled Caste. He married Ms. Lediya who was a Christian. They married on 10.06.2022 in the presence of the local Panchayat President and a Political figure.

l Later, they filed a joint application, under Section 5 of the Special Marriage Act on 17.06.2022.

l However, the Registrar informed the couple that the application couldn’t be filed as Ms. Lediya has yet to turn 21.

l Result of which, the petitioner approached the High Court, contending that under Section 4(c) of the Act, marriage can be solemnized between two persons when the male has turned 22 and the female has turned 18 years of age.Delhi High Court Advocate

Observations of the court

l The Court observed that the marriage performed by the couple was a Self Respect marriage.

l The Suyamariyathai and Seerthiruththa marriages (reformist/self-respect marriages) are provided for under Section 7-A of the Hindu Marriage Act, however, the marriage shall be performed between two Hindus.

l While in the present case, Ms. Lediya was a Christian. Thus, the marriage could not be solemnized under the Hindu Marriage Act. Also, the marriage was not solemnized under the Indian Christian Act, 1872.

Judgment

l The Court noted that for the marriage to be solemnized under Chapter II of the Act, the age of the female shall be 18 years while for the male it is 21 years.

l However, in the present case, marriage was performed on 10.06.2022, after which notice was given under Section 5 of the Act.

l The petitioner did not marry Lediya under the Special Marriage Act, and thus could not claim benefits under Section 4 of the Act.

l The Court also analyzed Section 15 of the Act, which provides for marriages performed in different forms,Best Lawyer In Delhi.

l Section 15 states that- “Registration of marriages celebrated in other forms- Any marriage celebrated before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 or under this Act, may be registered under this Chapter by a Magistrate Officer in the territories to which this Act extends even if the following conditions are fulfilled, namely:

(a)...

(b)...

(c)…

(d) the parties have completed the age of twenty-one years at the time of registration.”

l Since the marriage was not solemnized under the Special Marriage Act, it came within the purview of Section 15 of the Act, which provides for registration of marriage if the parties are more than 21 years old at the time of registration.

l Hence, it was decided that the registrar’s reason for declining the registration was correct.

l However, sympathizing with the petitioner, the Court advised the petitioner to follow the procedure provided under the Act, so the Registrar could not refuse the registration on the ground that Ms. Lediya has not yet turned 21 years old,Court Marriage Lawyer In Delhi.

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pinklegallaw · 3 years

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You can file for a divorce even if your husband’s family members are treating you with cruelty. Cruelty is not restricted only to the husband. Tag a friend who needs to know this! To understand further about Laws for click marriage laws and divorce laws

#hindu marriage law #hindu marriage law in india #divorce law for hindu marriage #hindu marriage act #hindu marriage act 1955 #hindu marriage act of 1955 #hindu marriage act section 13 #hindu marriage act section 9 #hindu marriage act section 24 #hindu marriage act section 13 b #divorce in hindu marriage act #hindu marriage act section 11 #hindu marriage act section 5 #the hindu marriage act 1955 #judicial separation hindu marriage act #restitution of conjugal rights under hindu marriage act

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legalupanishad · 1 year

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What are the Laws Against Extra-Marital Affairs in India?

This article on 'Laws Against Extra-Marital Affairs in India' was written by Ayush Choudhary, an intern at Legal Upanishad.

Introduction

In India, institutions like marriage are considered to be very pure and holy. Marriage in Indian society is considered to be a bond for seven lives, and thus concepts like Extra-marital affairs are considered a moral wrong. This belief is across all religions, whether it is Hinduism, Sikhism, Jainism, or Christianity. That is why there were strict laws against Extra-marital affairs even in the past. But, over a period of time with the development of fundamental rights, Extra-Marital affairs have been decriminalized in India.

Earlier Laws

Prior to 2017, an Extra-marital affair also known as adultery was considered a criminal offence and there were strict provisions against it. Therefore, an Extra-marital affair was a penal offence that is defined under Sec. 497 of the Indian Penal Code, 1860. According to it, adultery means an act of having sexual relations with the wife of another man and that too without the consent of that man. Here, this act is not rape but it is called adultery and was thus penalised. As per this Section, if a person is found guilty of Adultery, he can be imprisoned for 5 years or can be punished with a fine or in some cases with both. Thus, earlier the laws for Extra-marital affairs were very strict.

Present Situation

There was a lot of discussion and debate about the constitutionality of the penalization of Extra-marital affairs. Many scholars argued that such a harsh punishment for such an act is against the Fundamental rights of a person. It was also argued that having an affair with another man or woman is also a right of a person. Finally, after a long debate in 2017, an Extra-marital affair has been decriminalised by the Hon’ble court in the case of ‘‘Joseph v. Shine’’. Thus, now it is not an offence of high velocity. But it does not mean that it has been allowed in India. In the case of an Extra-Marital affair, a spouse can still reach the court to sue his/her partner for such an act and can claim remedies.

Hindu Marriage Act, 1955

Though an extra-marital affair or Adultery is not an offence anymore still a spouse of the person who is found guilty of Adultery or extra-marital affair can apply for certain remedies under the Hindu Marriage Act, 1955. The remedies provided by this law are as follows- - (a) Ground for Divorce According to Section 13(1)(i) of the Hindu Marriage Act, 1955, if a person after the solemnization of marriage engages in any sexual activity with a person other than his/her spouse then the spouse of that person can apply for a Divorce. Thus, under this law Adultery or an Extra-marital affair is a ground for Divorce. Here it should be noticed that this provision is gender-neutral, that is both husband and wife can use it to file a suit for divorce. - (b) Ground for Judicial Separation Under the Hindu Marriage Act, of 1955, an Extra-marital affair or Adultery is not only a ground for Divorce but also has been recognised as a legal ground for Judicial Separation. Thus, in the case of Extra-marital affairs spouse can apply for the Judicial remedy also.

Laws Against Extra-Marital Affairs in India

Indian Divorce Act, 1869

Not only in Hindu law but also in secular laws, adultery has been defined and prevented. The best example of it is the Indian Divorce Act, of 1869, which is a secular law. According to Section (27), clause(1) and sub-clause(a) of the Indian Succession Act, 1869, adultery or an extra-marital affair is a valid ground for divorce. Thus, in such cases, the spouse of the guilty can claim remedy in court. Adultery amounting to Cruelty Apart from being ground for divorce and judicial separation, adultery or extra-marital affair has also been defined as cruelty by the hon’ble high courts of India in many cases. In many cases court declared an extra-marital affair as cruelty against his/her legally wedded spouse. But this act does not amount to cruelty in all cases, and whether the adultery amounts to cruelty or not varies from case to case and depends upon the facts of the case present. Apart from this, a false case of adultery by a spouse against his/her partner is also a legal wrong and the Hon'ble court held it in the case of Rajbala v. Sukhbir Singh case, where it was said that a false allegation of cruelty by the spouse also amounts to cruelty.

Suggestion

Decriminalisation of Adultery by the Hon’ble Supreme Court is one of the biggest steps of the court toward the development of the legal system and constitution. Earlier when the extramarital affair was an offence it was clearly infringing the rights of a guilty of Adultery because according to the severity of the offence, the punishment prescribed by the law was too much and was thus unfair for the accused. Thus, decriminalisation of Adultery is a great step toward the empowerment and further strengthening of the Indian Constitution. Adultery or Extra-marital affair is more a moral wrong instead of legal wrong and it is always not necessary that a moral wrong is also a legal wrong and vice-versa. Thus, though an extra-marital affair is immoral in countries like India, it is not required it should also be illegal. But, from the point of view of a spouse, it is wrong and a spouse guilty of such an act should be compensated and provided a proper remedy. Because directly or indirectly an extra-marital affair implies bigamy and Indian Laws do not accept or promote bigamy it is instead an illegal act.

Conclusion

Thus, though adultery has been decriminalised in India long ago, the law provides the person who is affected by such an act proper compensation and remedy, i.e., the legal spouse of the person guilty of Adultery. In this way, the laws in India against extra-marital affairs protect the rights of both the guilty person and the person affected by it, which also indicates the healthy democracy of our nation.

List of references

- Tanuj Kanchan and KR Nagesh, 'Adultery and the Indian law' 10(2) International Journal of Medical Toxicology & Legal Medicine (2008) - Vijendra Kumar, 'Bigamy and Hindu Marriage' 59(4) Journal of Indian Law Institute (2017) - Vijay kumar and ShriKrushna Chowbe, 'Adultery – A Conceptual and Legal Analysis' SSRN Electronic Journal, January 2011, available at: https://www.researchgate.net/publication/228263447_Adultery_-_A_Conceptual_and_Legal_Analysis Read the full article

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top-divorce-lawyer · 11 months

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What Is The Cooling Period For Mutual Divorce?

The cooling-off period refers to a specified duration of time mandated by the court during divorce proceedings. It is intended to allow the couple a period of reflection and reconsideration before finalizing the divorce. The purpose of the cooling-off period is to encourage reconciliation and give the parties an opportunity to reassess their decision to dissolve the marriage, promoting a more thoughtful and informed approach to the divorce process.

Section 13 B: Hindu Marriage Act

Under Section 13B of the Hindu Marriage Act, the cooling-off period for mutual divorce is a mandatory six-month waiting period. This period begins on the date of filing the joint petition for divorce. During this time, the court provides an opportunity for the couple to reflect on their decision, reconsider their options, and explore the possibility of reconciliation. After the completion of the cooling-off period, if both parties remain firm in their decision to divorce, the court may proceed with granting the final decree of divorce.

Importance of Cooling Off Period in Mutual Divorce

The cooling-off period holds significant importance in mutual divorce proceedings for several reasons:

Reflection and Reconsideration: It allows the couple to have a period of time for introspection and reconsideration of their decision to divorce. This time can provide an opportunity for both parties to reflect on their emotions, circumstances, and the potential impact of the divorce on themselves and their families.

Chance for Reconciliation: The cooling-off period aims to facilitate reconciliation between the spouses. It gives them an opportunity to explore the possibility of resolving their differences, seeking counseling, or making efforts to save the marriage.

Informed Decision-Making- The duration of the cooling-off period provides the couple with ample time to evaluate their decision objectively. It ensures that the decision to divorce is not taken impulsively or under emotional duress but rather based on careful consideration and understanding of the consequences.

Prevention of Hasty Divorces: By imposing a waiting period, the cooling-off period discourages hasty divorces and allows couples to address any immediate conflicts or emotional turmoil that might have influenced their initial decision to end the marriage.

Protection of Interests: The cooling-off period provides a safeguard against potential regrets or future legal complications. It gives the parties an opportunity to seek legal advice, gather information, and make informed decisions regarding issues such as child custody, division of assets, and financial matters.

Waiving the Cooling Period in Mutual Divorce

The cooling-off period in mutual divorce can be waived by the court under certain circumstances, such as

Mutual Consent: If both parties mutually agree to waive off the cooling-off period and request the court expedite the divorce process, the court may consider their request.

Exceptional Circumstances: In cases where the court determines that there are exceptional circumstances or compelling reasons justifying the waiver of the cooling-off period, it may choose to do so.

Hardship or Cruelty: If one party can provide evidence of hardship or cruelty that makes it unreasonable to continue the marriage during the cooling-off period, the court may waive the waiting period.

However, it is important to note that the decision to waive the cooling-off period lies at the discretion of the court. The court will consider the facts and circumstances of the case before deciding whether to grant the waiver or not.

Role of Lawyers

During the cooling-off period in a mutual divorce, lawyers can play several roles to assist their clients. Here are some key roles lawyers may have during this period:

Legal Advice: Lawyers provide legal guidance and advice to their clients regarding the implications, rights, and options available during the cooling-off period.

Mediation and Reconciliation: Lawyers can help facilitate communication between the parties and explore the possibility of reconciliation or amicable resolution during this period. They may suggest mediation or counseling services to promote constructive discussions.

Document Review: Lawyers review and analyze any proposed agreements or settlements that may arise during the cooling-off period. They ensure that their clients' interests and rights are protected before entering into any legally binding agreements.

Negotiation and Settlement Discussions: Lawyers can engage in negotiations with the other party or their legal representatives to reach a mutually acceptable settlement during the cooling-off period. They advocate for their clients' interests and strive to achieve fair outcomes.

You will need the help of lawyers during the cooling-off period in a mutual divorce process. If you need the help of lawyers for the mutual divorce procedure in Mumbai, then Divorce lawyers in Mumbai can be hired. Similarly, Divorce lawyers in Ahmedabad can be employed if you need the help of lawyers for the mutual divorce procedure in Ahmedabad.

At Lead India, one can consult and talk to a lawyer for any kind of legal consultation. They can get free legal advice online as well as ask a legal question online for free to lawyers from Lead India.

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biatlegal · 2 years

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Know your legal rights: Divorce Law in India

A divorce is among the most traumatic circumstances for any couple. To add to this, it can also be a long-winded and expensive affair in India if divorce is queried. Indeed couples who mutually agree to the divorce, still, must prove that they've been separated for a time before the courts consider their plea.

In India, as with utmost particular matters, rules for divorce are connected to religion. Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956. The divorce law works with some conditions and not in all situations.

A partner can initiate to give a legal notice for divorce to the other partner before ending the hubby and woman relationship.

There are types of divorce desires and you'll hereby, understand the procedures on how to get divorce in India from a woman. Divorce process in India, divorce rules in India and the divorce laws in India are a little complicated. You can get help from a CA or a legal expert.

Types of Divorce Desires

A couple can get a divorce with collective concurrence, or either partner may file for divorce without the concurrence of the other.

Divorce with Collective Concurrence

When hubby and woman both agree to a divorce, the courts will consider a divorce with collective concurrence. For the solicitation to be accepted, still, the couple should be separated for over a time or two times (as per the applicable act) and be suitable to prove that they've not been suitable to live together. Frequently, indeed when either hubby or woman is reticent, they still agree to such a divorce because it's fairly affordable and not as traumatic as a queried divorce. Matters similar to children's guardianship, conservation and property rights could be agreed upon.

There are three aspects regarding which a hubby and woman have to reach an agreement.

One is alimony or conservation issues. As per law, there's no minimum or maximum limit of support. It could be any figure or no figure. The alternate consideration is the guardianship of the child. This must inescapably be worked out between the parties, as it's inescapably what requires the topmost quantum of time in divorce without collective concurrence. Child guardianship in a collective concurrence divorce can also be participated or common or exclusive depending upon the understanding of the consorts. The third is the property. The hubby and woman must decide who gets what part of the property. This includes both portable and immovable property. Right down to the bank accounts, everything must be divided. It isn't necessary for it to be fair, so long as it's agreed to by both parties.

What does the Section say?

The duration of a divorce by collective concurrence varies from six to 18 months, depending on the decision of the court. Generally, the courts prefer to end collective concurrence divorces sooner, rather than latterly.

As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be living independently for at least one time before divorce proceedings can begin. Section 10A of Divorce Act, 1869, still, requires the couple to be separated for at least two times. Do note that living independently doesn't inescapably mean living in different locales; the couple only needs to give that they've not been living as hubby and woman during this time period.

Divorce Without Collective Concurrence

In case of a queried divorce, there are specific grounds on which the solicitation can be made. It is n’t as if a hubby or woman can simply ask for a divorce without stating a reason. The reasons are as follows, though some aren't applicable to all persuasions.

1. Cruelty

Cruelty may be physical or internal atrocity. According to the Hindu Divorce Laws in India, if one partner has a reasonable apprehension in the mind that the other partner’s conduct is likely to be pernicious or dangerous, also there's sufficient ground for carrying divorce due to atrocity by the partner.

2. Infidelity

In India, a man that commits infidelity ( i.e. has consensual sexual intercourse outside of marriage) can be charged with a felonious offence. The woman may, of course, train for divorce as a civilremedy.However, on the other hand, a woman commits infidelity, If.

3. Dereliction

One partner deserting the other without reasonable cause ( atrocity, for illustration) is a reason for divorce. Still, the partner who abandons the other should intend to desert and there should be evidence of it. As per Hindu laws, the dereliction should have lasted at least two nonstop times. Christians, still, won't be suitable to file a divorce solicitation solely for this reason.

4. Conversion

Divorce can be sought by a partner if the other partner converts to another religion. This reason doesn't bear any time to have passed before divorce can be filed.

5. Mental Disorder

Still, divorce can be sought, If the partner is unable of performing the normal duties needed in a marriage on account of internal illness. If the internal illness is to such an extent that the normal duties of wedded life can not be performed.

6. Transmissible Complaint

Still, similar as HIV/ AIDS, syphilis, If the partner suffers from a transmissible complaint.

7. Repudiation of the World

Still, the displeased partner may gain a divorce, If the partner renounces his/ her wedded life and opts for sannyasa.

8. Presumption of Death

Still, by similar individuals who would have heard about a similar partner, if he or she were alive, If the partner has not been heard of as being alive for a period of at least seven times.

Divorce Notice

Before anything, you should be apprehensive to produce a divorce notice to your partner. This is to clarify the feelings and a platform to initiate your studies on discontinuing the relationship. A legal notice for divorce will bring clarity to the other partner about the unborn relationship which you want to hold.

A partner can shoot a legal notice for divorce to the other partner in order to communicate his/ her intention to take legal way forward covering the marriage relationship. It's a formal communication which is the first step to break the‘ hubby and woman’ connection.

What's Alimony?

When two people are married, they've an obligation to support each other. This doesn't inescapably end with divorce. Under the Code of Criminal Procedure, 1973, the right of conservation extends to any person economically dependent on the marriage. This will include, thus, either partner, dependent children and indeed penurious parents.

The claim of either partner ( however, in the vast maturity of cases, it's the woman), still, depends on the hubby having sufficient means. When deciding the payment on the alimony, the court will take into account the earning eventuality of the hubby, his capability to regenerate his fortune and his arrears.

In case either partner is unfit to pay for the divorce, also the partner who earns will have to pay these charges.

Factors that impact the duration and quantum of alimony

In a queried divorce, the alimony, its quantum and term, depend upon the length of the marriage. A divorce after a decade of marriage entitles the partner to a life-long alimony. The other essential factors are

1. Age of the partner (or the person who's ought to admit the alimony)

2. Profitable condition or the earnings of the person who's to give the alimony

3. The health of both partner (the failing health or a medical condition of one of the consorts who's going to admit the alimony may act in favour of him or her. They can claim a larger alimony on the base of their failing health).

4. The partner that retains guardianship of the child would either pay lower alimony or pay a lesser quantum while the child is a minor.

How to settle property matters?

It infrequently matters whether you or your partner enjoy the property. If you're wedded – irrespective of the fact that a divorce solicitation has been filed – you have the right to enthrall the property.However, the case is much stronger, If you're also looking after children. While the property may be granted to one or the other partner in the divorce agreement, until this is done, both consorts have the right to remain on the property.

What about child guardianship?

Numerous assume that the mama always gets guardianship of her children. This isn't the case. While the courts generally agree to the decision of the parents in a collective concurrence divorce, the courts will look into the stylish interest of the child. In a queried divorce, the courts will examine the capability of the mama or father to be a parent to the child, for illustration. You can not take plutocrat into consideration. Generally, the court provides the guardianship of their children to non-working mothers, but the fathers are anticipated to give fiscal support.

How important does it bring to get a divorce?

Court freights for filing a divorce are low; the cost is substantially in the freights you pay your counsel. Attorneys tend to charge freights for appearing in court and doing any other work. Depending on how intensively it works, thus, it may bring anywhere from the low ten thousands to lakhs of rupees.

Documents needed

1. Address evidence of hubby

2. Address evidence of woman

3. Marriage instrument

4. Four passport size photos of the marriage of hubby and woman

5. Substantiation proving consorts are living independently since further than a time

6. Substantiation relating to the failed attempts of conciliation

7. Income duty statements for the last 2-3 times

8. Details of profession and present remuneration

9. Information relating to family background

10. Details of parcels and other means possessed by the supplicant

Dissolution of marriage

One can dissolve a marriage in India by means of dissolution. The procedure for dissolution is the same as that of divorce, except that the grounds for dissolution are different from that of divorce. Reasons for dissolution are fraud, the gestation of woman by a person other than the hubby, incompetence before the marriage and breathing indeed at the time of filing the case.

Once the Indian court subconvens and dissolves, the status of the parties remains as it was previous to the marriage.

Void marriage

A marriage is automatically void and it automatically can be invalid when the law prohibits it. Section 11 of the Hindu Marriage Act, 1955 deals with

Any marriage praised after the inception of this Act shall be null and void and may, on a solicitation presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 of the Act.

Bigamy If either partner was still fairly married to another person at the time of the marriage also the marriage is void, and no formal dissolution is necessary.

Inter Family marriage A marriage between an ancestor and an assignee, or between a family and a family, whether the relationship is by the half or the whole blood or by relinquishment.

Marriage between close cousins A marriage between an uncle and a bastard, between an aunt and a whoreson, or between first relatives, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Voidable marriage

A voidable marriage is one where a dissolution isn't automatic and must be sought by one of the parties. Generally, a dissolution may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage wasn't present at the time of the marriage, either due to internal illness, intoxication, constraint or fraud.

The duration for carrying divorce varies from case to case and place to place. Generally speaking, queried proceedings take 18 to 24 months. Collective concurrence varies from 6 months to 18 months.

Connect with BIAT Legal LLP to know the new rules for divorce in India & the divorce law as well.

Read More: Property Dispute between Blood Relations

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thelawcodes · 2 years

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How to Proceed for Mutual Consent Divorce

The provisions for divorce by way of mutual consent are contained under Section 13 B of the Hindu Marriage Act. This article aims at providing information to the litigant/layman who is seeking information on the legal aspects of mutual consent divorce and also explains in detail the procedure involved in obtaining a decree of divorce by way of mutual consent.

How to file mutual consent divorce?

A joint petition by both husband and wife has to be filed under Section 13-B of Hindu Marriage Act before the Family Court having jurisdiction, seeking grant of mutual consent divorce.

Who can file a divorce by mutual consent?

Both the parties to the marriage i.e. the husband and wife can file a joint petition under Section 13-B of the Hindu Marriage Act for grant of decree of divorce by mutual consent. The conditions for filing divorce and getting a divorce by mutual consent are expressly mentioned in the act and reproduced herein below:

13B. Divorce by mutual consent

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws(Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

What points to incorporate in the joint mutual consent divorce petition?

Best Divorce Lawyers should consider incorporating the following legal points while drafting a divorce petition:

The parties have completely separated from each other as they were unable to pull together on account of lack of understanding and temperamental differences between them. Several meetings have already taken place between the parties with the due intervention of common relatives, however, no fruitful results could be obtained.

The marriage has now broken down irretrievably and irreparably.

The parties have not lived together as husband and wife for more than one year and since then they have been living separately.

The parties have voluntarily arrived at an amicable settlement resolving their disputes and deciding to part ways.

One-time settlement/agreement in full and final.

Nothing remains due about any item/Sridhar, maintenance-past present and future.

Mutually agreed by both the parties that if any complaint/case/application is pending before any competent court of law/competent authority, which is not in the knowledge of either of the parties or has escaped their attention shall also be withdrawn by them.

The consent for filing the present petition has not been obtained by the parties by force, fraud, inducement, or undue influence of any kind.

The petition has not been presented in collusion with the parties.

Where can a petition seeking mutual consent divorce be filed?

Jurisdiction of Court for filing Divorce Petition: Section 19 of the HMA contains provisions regarding the jurisdiction of the court where a petition for filing divorce can be presented.

19. Court to which petition shall be presented.—Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:—

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iii) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for seven years or more by those persons who would naturally have heard of him if he were alive.

The petition under Section 13 B can be presented before the Family Court of a district where either the marriage was solemnized, the parties to the marriage last resided together, or at the place where the wife is residing.

What are the Stages/ Procedure in Mutual Consent Divorce cases:

Steps involved before the filing of the petition:

Step 1: One-year separation period before the filing of the petition. However, in case of exceptional hardships, this period can be condoned by the court by moving appropriate applications.

Step 2: Drafting of a settlement agreement between husband and wife

Procedure/stages in Court proceedings:

Step 3: Filing of the joint petition under Section 13 B of the Hindu Marriage Act along with affidavits of both husband and wife.

Step 4: Recording of first motion statement

Step 5: Cooling off period of 6 months. (Application for waiving off this cooling period can be moved in certain cases)

Step 6: Recording of Second Motion statement

Step 7: Decree of Divorce

When can divorced persons remarry?

Section 15 of the Hindu Marriage Act expressly contains the provisions regarding remarriage. The section is reproduced herein below:

15. Divorced persons when may marry again.— When a marriage has been dissolved by a decree of

divorce and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

As per the provisions of this section, after obtaining the decree of divorce the parties can remarry after lapse of the limitation period for filing an appeal against the divorce decree and in a case where such appeal is filed, after the dismissal of such appeal. The limitation period for filing an appeal to High Court in divorce cases is 90 days from the date of decree or order.

Benefits of taking Divorce by way of Mutual Consent:

Parties do not get involved in unnecessary litigation;

Speedy and effective remedy;

Cost-effective and hassle-free litigation;

Autonomy on conditions for arriving at a settlement;

No bitterness and exploitation of parties to the litigation.

For further details visit the website

Bare Act source: The Hindu Marriage Act 1955

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