What may have seemed like a bond of a lifetime at the time of solemnization of marriage, with time can succumb to compatibility issues and temperamental differences which not only make the relationship sour but sometimes, unbearable. Consequently, such matrimonial issues often lead to divorce.
Now, there can be chances where one person may want to resolve the dispute, while the other doesn’t and remains adamant to the point of seeking separation by divorce – such disagreements lead to having the matter taken before the Court and for having a judge to decide whether the plea for divorce being made by a party is just and right. Such a contest for divorce is known as ‘contested divorce’ in popular language.
In other situations, where both parties agree to dissolve their marriage amicably, a mutual consent divorce can be sought.
Divorce with Mutual Consent in India
When both the partners are just as annoyed with one another and decide for good to dissolve their marriage, a mutual consent divorce can be obtained. Section 13-B of the Hindu Marriage Act provides for a mutual divorce for Hindus, Sikhs, Jains, and Buddhists.
How Long Does It Take?
Although, this procedure is much easier and quicker than the tedious contested divorce process, yet, it doesn’t happen at the drop of a hat. It still is a legal proceeding that consumes time. The process ends up in 2 hearings also referred to as “motions”. The law prescribes a mandatory pacifying period of 6 months to be observed between the two motions, with a hope that if there’s any chance to make amends and work the marriage out, the period shall help.
So, all in all, including counseling, settlement, documentation, and two motions, the whole process of getting the final mutual consent divorce decree may consume about 7 months.
Aspects of delay that one must consider:
Litigants must bear in mind that the scope of inevitability in legal works is vast and delays can be on account of many factors:
- Prolonged delays in negotiation on settlement terms. An immature lawyer whose expertise is not marital laws and negotiation can keep the settlement document going back and forth.
- The inefficiency of a lawyer – some lawyers take the callous approach and do not deliver their work in time, this is one of the major reasons of harassment that clients tend to meet while complying with legal processes.
- The callousness of the other party.
- Court Strike/ off/ absenteeism of the judge. If the court has called off work on account of strike etc. the next available date is going to be given.
- Non-appearance of a party – if a party voluntarily or involuntarily flouts, and does not appear on the date of second motion, the court may grant the next available date.
Can the Mandatory Period of 6 Months in Mutual Divorce be Waived off?
In a recent Judgment, Amardeep Singh Vs. Harveen Kaur in civil appeal no. 11158 2017, the Hon’ble Apex court made an exception by waiving off the period of 6 months in a mutual divorce petition observing that the history of litigation and umpteen failed attempts of reconciliation over the course suggest that biding down parties by law for another six months will only hamper the interest of justice. The period was waived by the very wise and judicious Hon’ble Justice Adarsh K. Goel.
However, in paucity of legal understanding, and under a half-blanket of knowledge, people have started taking the discretion exercised for granted, believing that mutual divorce does not anymore require a six-month mandatory wait.
Carefully reading the above-referred judgment can bring to light the intent and direction of the apex court in waiving off the 6 months cooling-off period.
Legal Requirements for a Divorce by Mutual Consent:
How to get a divorce in India from a wife? Are there any new rules for divorce in India? A sufferer who is under distress of a completely dead marriage must be stressed over by such inquisitive thoughts. There are certain legal grounds for divorce which works for both husband and wife. Besides that, when it comes about new amendments in divorce laws, the government and judiciary keep introducing valuable changes to improve legal remedies.
Section 13B of the Hindu Marriage Act, 1955 demarcates the following conditions for a divorce by mutual consent:
- Must have been married for at least 1 year on the date of filing.
- Must be living separately for at least 1 year.
- The couple is unable to live together.
- Husband and wife have reached the consensus to get divorced, and when they have accepted that the marriage has completely disintegrated.
In an uncontested divorce, the husband and wife have to file a petition in the family court of the location where they last lived. After receiving the petition and recording the statement of both the spouses, the court adjourns the matter for 6 months. After a period of 6 months, the family court is hearing the matter again. This second motion confirms the consensus of the two parties to dissolve the marriage. Upon satisfaction of the court with the tendered evidence and statements, the divorce decree is granted in this second motion.
Child custody, visitation rights, alimony, maintenance, distribution of assets and property, all are mutually decided in this type of divorce. The most crucial aspect of mutual divorce is a peaceful, timely and effective settlement, and no matter how simple it looks, there is no room for incompetence and unprofessionalism a slight mistake by a novice lawyer can make the clients suffer huge – both in terms of money and time. This is once aspect that a person cannot and ideally should not compromise on quality and must seek the assistance of the best available divorce lawyer.
Contested Divorce in India
When it comes to statistics for how long does a contested divorce take in India, the answer is a little disturbing. In most of the scenarios, the case is stretched longer due to disagreements on various matters, unprofessional and callous attitude of parties and their lawyers, excessive workload and distant court dates.
This is when the role of a distinguished divorce lawyer comes into the picture. A proficient divorce attorney can alleviate stress and can proactively reduce time consumption. For a contested divorce, the legal grounds are mentioned in Section 13 of Hindu Marriage Act, 1955 are:
- Adultery
- Conversion
- Leprosy
- Venereal disease
- Cruelty
- Mentally unstable
- Renunciation of death.
- Non-resumption of cohabitation by a spouse
- Whereabouts are not known for more than 7 years.
- Non-restitution of conjugal rights.
On any of the above grounds, a petition for divorce can be filed in India. Further, the party has to present the evidence in court to support the ground on which divorce is sought. For complete understanding and a clear vision, one can also check out the procedure for how to file divorce in India.
The woman is entitled to several rights even after the divorce including child custody, child visitation, property rights, asset distribution, alimony, maintenance, etc.
This article is written by Ambransh Bhandari. The author can be contacted via email at ambransh@bnblegal.com
For more information and professional consultation regarding divorce matters, our expert divorce lawyers in Chandigarh can be contacted from Monday to Friday between 10:00 am to 6:00 pm and between 10:00 am to 2:00 pm on Saturdays.
