Divorce via video-conferencing
As per a recent techno-savvy development and in order to bid the counter criticism that the judiciary is slow in dispensing justice, for the first time in Dharwad, a family court heard the divorce case petition via video – conferencing by recording the statement of the petition the who stayed in New Jersey, USA.
The man had sought a divorce from his wife and friend that I was intimation to e-mail. The matter has been referred to the family Court of the district. Husband and wife both were Muslims. After marriage the husband travels to US for office work and due to differences cropping between them, the husband had sought a divorce.
In question to this, the wife filed a petition in the family Court of the district, where the case was admitted and a notice was issued to the husband. The advocate of the husband contended that the husband stayed in USA and it is not possible for him to appear before the court to give his statement. The husband’s lawyer requested the court to record the statement via video-conferencing.
The court accepted the request and appointed senior counsel Prafulla Naik as the commissioner of the court and got the statement recorded.
Is the first time in the history of the judiciary that a case hearing was done via video-conferencing.
Unilateral withdrawal of consent during mutual divorce is mental Cruelty
Delhi High Court
Unilateral withdrawal of consent by a spouse at the time of mutual divorce without any grounds amounts to mental cruelty, the Delhi High Court has said. A bench of justices Pradeep Nandrajog and Yogesh Khanna said this while dealing with a case filed by a husband against a trial court’s order by which the couple, who got married in March 2004, mutually decided to separate.
The bench noted that the respondent (woman) was always willing to abide by the terms and conditions of the settlement deed and had voluntarily given up her claim of alimony and honoured her commitment arising out of the settlement. “Thus, the unilateral withdrawal of consent by the appellant herein without any sufficient or just cause, in the circumstances, rather added to the cruelty meted to her,” the court said.
The trial court in June this year had allowed the woman’s petition for divorce on the ground of cruelty. Challenging the trial court verdict, the husband moved the high court denying the allegation of cruelty and claimed that the issues were trivial arising out of child care, upbringing, interference of her parents, her repeated demand to live near her parents, her refusal to take care of his elderly and ill parents.
Brushing aside the man’s claim, the high court said “the fact is where he has entered into a settlement with his wife and there being no allegation that he ever signed such settlement due to force, fraud or under influence and also when the respondent (woman) had acted upon such settlement by withdrawing her divorce petition; forsaking her claim to custody of their son and of her permanent alimony, then the withdrawal of consent would have a different connotation as it adds to the misery of the respondent.”
Upholding the trial court’s order, the bench said the “unilateral withdrawal of the consent by the husband rather leads to an anomalous situation where the wife, a law-abiding lady, adhering to the terms and conditions of settlement, dated May 24, 2014 was left high and dry with a dead marriage and whereas the husband kept on enjoying his freedom without paying any maintenance, alimony”.
“The apology letter (of the husband) proves that he used to beat her, did not allow her to visit her home, cast aspersions upon her character, snatched her salary, took money from her father, which he did not return and rather asked for dowry, thus committed cruelty upon her,” the court noted in its 15-page judgement. The couple, both of whom are teachers, have been living separately since 2009.
Divorce by mutual consent
The Hindu Marriage Act 1955 under Section 13B has a provision for divorce by mutual consent; however, it puts some conditions which must be fulfilled by the parties. For instance, husband and wife have been living separately for a period of one year or more, they must also be unable to live together, and both have mutually agreed that the marriage has totally collapsed.
The fastest way or procedure of getting divorce in India is divorce by mutual consent as other options may linger on for decades. The law says that all marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 can be annulled provided the parties to marriage consent for the same in front of the court.
How to start a divorce based on mutual consent?
The provision for consensual divorce has been for estranged spouses under Sec. 13-B of The Hindu Marriage Act, Sec. 28 of The Special Marriage Act, and
Sec.10-A of The Indian Divorce Act. The settled procedure is that for seeking a divorce by mutual consent the parties must file a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division.
The petition which is also called the First Motion Petition for Mutual Consent Divorce should contain a joint statement by both partners present in Court. The two parties must convey that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court.
There are a lot of conflicting issues that may come when the husband and wife are agreeing upon for a mutual consent divorce. For instance, child care, alimony to wife, return of dowry items, litigation expenses, etc. should be settled long before the actual filing for divorce by mutual consent to avoid any issues later on.
What if one party does not consent?
A lot of cases come up when not all estranged couples agree on the desirability, grounds or the conditions of divorce and that is where trouble for the partner that is willing for presenting the petition starts. The government of India is mulling for amending the HMA to accommodate irretrievable breakdown of marriage and provide divorce.
Thus, there are several advantages of mutual divorce; for instance, you not just save time and money but also do not lose respect in front of relatives and the estranged partner as its mutually agreed divorce and no bitter feeling.
Divorce by mutual consent – conditions and procedure
Section 13-B of the Hindu Marriage Act, 1955 (as amended by the Amendment Act No. 68 of 1976) lays down the relevant provisions for divorce by mutual consent of husband and wife, i.e., by mutual consent of both parties to the marriage. It is pertinent to point out that the Hindu Marriage Act is applicable basically to a person who is Hindu, Buddhist, Jaina or Sikh by religion.
A similar provision for divorce by mutual consent exists also in Section 28 of the Special Marriage Act, 1954. This Act is basically an enabling statute, i.e., it applies only when two persons voluntarily choose to marry under the provisions of this Act. Generally, this Act is used when two persons want to perform a civil marriage or the so-called “court marriage”. If an inter-religious or inter-community marriage has to be performed, then it can be performed under the Special Marriage Act.
Since both these sections under the Hindu Marriage Act and the Special Marriage Act are similar, I am reproducing Section 13-B of the Hindu Marriage Act that provides for divorce by mutual consent:
“13-B. 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 a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of 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.”
It may be pertinent to mention that Section 13-B was inserted in the Hindu Marriage Act in 1976 by way of the Amendment Act No. 68 of 1976, which means that this provision did not exist before 1976. However, in spite of this, a petition for divorce by mutual consent can be filed even for those marriages that were solemnized prior to 1976, provided other conditions are satisfied.
In the light of the above legal provision, let us now understand the nuances of divorce by mutual consent.
What is divorce by mutual consent?
As the name itself suggests, divorce by mutual consent means a decree of divorce obtained when both parties to the marriage, i.e., both husband and wife, agree for divorce in an amicable manner, with no party opposing it. A joint petition is filed together by both parties.
What are the conditions for making joint petition for divorce by mutual consent?
Following conditions must be satisfied for making a joint petition for divorce by mutual consent:
- That husband and wife have been living separately for a period of one year or more.
- That they have not been able to live together.
- That both husband and wife have mutually agreed that the marriage should be dissolved.
Thus, where the marriage has completely failed and both parties feel that it is not possible to live together, and where the aforesaid 3 conditions are satisfied, both the husband and wife can file a joint petition before the District Court for dissolution of marriage, i.e., for divorce by mutual consent, under the provisions of the aforesaid Section 13-B of the Hindu Marriage Act.
What is the procedure for obtaining divorce by mutual consent?
- If all the aforesaid conditions are satisfied, both husband and wife can file a joint petition before the District Court. This petition should be signed by both parties to the marriage. Such joint petition is usually required to be filed in the District Court at the place where the marriage was solemnized or where both parties lived together last.
- Upon filing of the joint petition, statements of husband and wife will be recorded by the Court.
- Thereafter, a period of at least 6 months is given by the Court. This is the legal requirement under Section 13-B(2) of the Hindu Marriage Act. During this period of 6 months, husband and wife can make efforts for reconciliation.
- If they arrive at a compromise within this period and decide to resolve their differences and decide to live together again, they can withdraw the joint petition filed by them.
- In fact, even one of the parties to the marriage, i.e., either husband or wife, can also withdraw his or her consent to the joint petition for divorce by mutual consent.
- However, if both parties are not able to resolve their differences and make a second motion after 6 months (but, it has to be before the period of 18 months), the Court will hear both parties.
- After hearing both parties in this manner, and after making such inquiry as it thinks fit, the Court, on being satisfied that a marriage has been solemnized and that the averments made in the joint petition are true, shall pass a decree of divorce declaring the marriage to be dissolved.
- The marriage will stand dissolved from the date of such decree passed by the Court.
Thus, divorce by mutual consent is advisable where it is impossible for the husband and wife to live together any more and where they have come to the conclusion by mutual agreement that it is better to dissolve the marriage. This process avoids the allegations made by either party against the other, which are usually seen in most matrimonial disputes. Divorce by mutual consent is a comparatively faster and easier method of getting the marriage dissolved when both husband and wife mutually agree to get the marriage dissolved. At the time of such mutual agreement, they should also amicably settle other issues, such as custody of children, disposal of common property, the alimony to be paid, etc.
Procedure Mutual Consent Divorce
Mutual Consent Divorce was brought by the India Parliament vide Amendment in the year 1976 in the Hindu Marriage Act.
Mutual Consent Divorce has brought relieve. As a mutual consent divorce lawyer, it is desirable to suggest to parties to understand the futility of long drawn litigation and thereby proceed towards mutual consent divorce.
As per law, duration/time of obtaining mutual consent divorce is six months. Although, parties have option of filing the second motion petition any time between six months and eighteen months from the date of the filing of the Mutual Consent Divorce Petition.
Parties desirous of Mutual Consent Divorce are always perplexed as to how to initiate the process, role of court, terms and conditions of mutual consent divorce, issues of maintenance and child custody, duration of mutual consent divorce, place where Petition for mutual consent divorce 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 situation better than husband and wife themselves; also impact on the children.
Accept that there can be agreement even in disagreement.
If there are child(ren) involved, spouse should decide amongst themselves who is going to be 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 understanding of joint custody or shared parenting in mutual consent divorce process.
Next important aspect is 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. As a mutual consent divorce lawyers, we provide platform to parties to discuss these issues in calm atmosphere and reach to their own solutions. We as a mutual consent divorce lawyers provide different options using our vast experience in the field to resolve issues affecting the chances of settlement. Sometime, emotions between spouses are running so high that logic fails.
NOW, you are ready to file petition for mutual consent divorce.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 for divorce by mutual consent 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 for divorce.
After this Court passes an order dissolving the marriage by granting decree of divorce and thereby marriage stands dissolved.