Marriage is one of the universal social institutions. It was established by society to control and regulate the sex life of a man with the institution of the family. It is an institution of society that can have very different implications in different cultures.
In the Hindu social heritage, marriage has never been looked from the materialistic point of view, instead, it is termed as something sacred and not a social contract. But hey! does it hold the same importance in today's modern society? Where social strata and compatibility matter more than compromising and adjusting for one another.
Hindu Marriage has undergone changes in the last few decades, which give rise to two questions:
- Is marriage still a sacred concept?
- Or, Has it lost its sanctity, or is it treated as a contract?
Today, marriage in India stands on a crossroads where on one hand it is celebrated in a grand way whereas, on the other hand, people are choosing to live in live in relationship in India with their partners without getting legally married. Today relationships are no longer treated as unbreakable, or irrevocable, as the procedure of divorce whether mutual consent divorce or contested divorce is socially and legally permissible, and the ideal of 'pativrata' has lost its significance for there is a legal provision for re-marriage and divorce. Imagine back in times of Ramayana, when Ram was exiled for 14 years, Sita Ji asking for a divorce because she married him to be a queen and not to live in forests. Exactly, that's the case of today's marriage system, where partners don't want to compromise along with each other and lead independent lives. So let's look into the details of divorce means and what does mutual consent divorce or contested divorce in an Indian context actually mean.
Divorce - A Taboo in India
We all have at least once, going through a breakup and we know how painful and depressing they can be in some cases. In a similar way, mutual divorce is also not a very pleasant experience, in-fact for a couple who have given their heart and soul to a marriage, and seeing it end in form of a mutual divorce or say just divorce! In India, having a son means growth in family, or family business or that one day he will take responsibility for the family. But what about daughters? What are we teaching them? To find good husbands, to get married and get settled, well if that's what triggers a storm of questions, then you might be right because, somewhere we as a society, don't realize the fact what if a husband leaves her or dies un-naturally or tortures her, where is she gonna go. The divorce procedure in India whether a mutual consent divorce or a contested divorce is still a taboo and women are told to adjust and compromise in their marriage than get mutual consent divorce by following the divorce procedure and live peacefully.
Divorce law in India
In India, as with most personal matters, rules for mutual consent divorce and divorce in general and procedure of divorce are connected to religion. Divorce procedure or the divorce process among Hindus, Buddhists, Sikhs, and Jains is governed by the Hindu Marriage Act, 1955(1), 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(2). All civil and inter-community marriages and their divorce procedure and divorce process are governed by the Special Marriage Act, 1956(3).
In order to file a mutual divorce and dissolution of marriage, couples who have been living separately or consider their marriage to be over based on some other factors by which they can satisfy courts to get the decree of separation by mutual consent by filing a petition for divorce following the divorce procedure.
Section 13 of the Hindu Marriage Act, 1955 states the grounds of divorce, even though such grounds may be liberally construed by courts. In construing the provisions of Section 13, one has to remember that divorce is not generally favored or encouraged by courts and is permitted only for very serious and grave reasons. Courts while evaluating Section 13(1)(i) stated that "when marriage is dead, emotionally and practically, and there is no chance of it being retrieved, the continuance of it would be cruelty within the meaning of this section." (Romesh Chander v. Savitri (1995) 2 SCC 7).
Section 13-B which talks about mutual consent divorce states that divorce procedure can be initiated by a petition for dissolution of marriage by a decree of divorce by mutual consent may be presented to the district court that they have been living separately for a period of one year or more, and agree to dissolve their marriage through mutual consent divorce. It is at times also known as "No-fault divorce".
Procedure to file mutual consent divorce
According to law, one has to file a petition in order to initiate the process of mutual divorce, even in a scenario where it is mutual consent divorce along with proper reasons and grounds to do so. There are several ways under which one can file and initiate the procedure of mutual divorce. Mutual Divorce is also known as 'No fault' divorce, can be filed only by a couple who has been living separately for more than over a year and must be able to back their grounds for dissolution of their marriage by way of mutual consent divorce. Despite everything, the entire divorce procedure is considered to be an expensive issue like Sussane Khan asking for alimony of Rs. 400 crore from Hrithik Roshan, mutual divorces are relatively inexpensive and not as traumatized as the previous one. Also, the procedure of mutual divorce is simpler as compared to divorce in general.
The duration which is required to file a mutual consent divorce varies from six months to eighteen months depending upon the legality of the case. The duration of a divorce by mutual consent varies from six to 18 months, depending on the decision of the court. Usually, the courts prefer to end the procedure of mutual consent divorces sooner, rather than later. Also, the term 'living separately' under Section 13B(1) for filing of mutual consent divorce means not having a conjugal relationship even if living under the same roof. In the case where one of the partners has sought a decree of divorce under Section 15 of the Hindu Marriage Act, means that the intervention of court was sought to end the relationship by complying with rules laid under Section 11, 12 or 13 of the Act. There are few grounds on which both husband and wife have to reach a consensus for initiating the procedure and getting a mutual consent divorce. Not just reaching consensus is important but also couple seeking mutual divorce needs to discuss mutual consent divorce terms with their spouse, some of which are mentioned below:
- Alimony or maintenance issues - As per law, there is no minimum or maximum limit of support. It could be any figure or no figure at all. In most cases, parties agree to pay nominal amounts as alimony or spousal support money to support another partner. Generally, the amount is decided by the court but in case of mutual consent divorce, the parties have to pre-decide the amount of maintenance i.e., before initiating the divorce procedure.
- Custody of the child - This must necessarily be worked out between the parties to the mutual consent divorce before initiating the procedure of mutual divorce, as it is inevitably what requires the greatest amount of time in divorce without mutual consent. Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses.
- Property - The husband and wife opting for mutual consent divorce must decide who gets what part of the property even before starting with the divorce procedure. This includes both movable and immovable property. Right down to the bank accounts, everything must be divided before filing the mutual consent divorce petition. It is not necessary for it to be fair, so long as it is agreed to by both parties.
- Once the divorce procedure is initiated and the petition for mutual consent divorce has been submitted successfully, both parties have to appear in person before court and get their statement recorded on oath, then as per the procedure of divorce the court grants 6 months cooling-off period to couple opting for mutual consent divorce to reconcile or reconsider their decision. After the expiry of 6 months or within 18 months, the couple has to reappear before the same court (that’s Second Motion) and reiterate again their wish of mutual separation or mutual consent divorce. Once the court is convinced, the decree for mutual divorce is granted. This puts an end to the marriage of parties as well as to the procedure of divorce.
How to file a divorce in India Online
Even I was taken aback when I first heard of a mutual divorce petition filed online instead of courts, and it reminded me that how can courts stay behind when it comes to digitalization of their work and making life hassle-free and less expensive as compared to traditional divorce methods. With the growing rate of mutual divorce in India, courts have tried to ease the procedure of mutual divorce by introducing the online filing of mutual consent divorce. This was done to cater to the growing number of mutual consent divorce cases by reducing the time and free from mental trauma.
In order to file a petition for mutual consent divorce online, there are two ways one can file it, namely 'online divorce firm' which will help you in the procedure of opting divorce and secondly 'do it yourself', which means you will have to contest your case by yourself and follow. It is advisable that one must take help and guidance from these online firms as they are well aware of the technicalities involved while filing for mutual consent online. Also, there are a few requisites that are required to be fulfilled while contesting online:
- Both parties must have reached upon an agreement about mutually parting ways; and
- Matters related to the separation of child custody, property, alimony and assets must be sorted beforehand
- Once all this is done, pen down things in writing in order to sort things easily and reach over agreement easily
- Keep in mind that though e-filings of mutual divorce are easy, you might require a lawyer to do it for you. Since they are well versed with the technicality involved
- Just like any other law firm, these online firms ask you to fill out a form and lay down all the details about you and your spouse, thereby filling out the form. This ensures that the details given by both parties are valid and helps these firms to understand the cause of mutual consent divorce in more details
- Present a legal notice to your spouse either by registered mail or in-person
- Both parties need to be present while carrying out this procedure. This ensures that the divorcee filed is consented and mutual and both parties have no objection in getting it done
- Once the form has been filled out, the experts of the firm will approve of it, thereby finalizing it for filing. This is process ensures that both parties are getting mutually separated and evaluates the grounds on which it was filed before it is filed before the court of law
- A print out of the same needs to be obtained, which is then ready to be filed at a local court for a divorce
- Now it is the court’s turn to complete the rest of the proceedings. After going through the details, and the grounds on which the divorce has been filed, the court will grant you the final divorce decree
It becomes easier to obtain a divorce minus the regular hassles. This is the usual procedure for obtaining an online divorce in India. Despite the few loopholes, one can always opt for an online divorce, which is definitely fast and easy in comparison to the customary divorce methods followed in India.
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External Links:
[1] Hindu Marriage Act, 1955: A detailed view of the Hindu Marriage Act, 1955
[2] Indian Divorce Act, 1869: A sitemap to the Indian Divorce Act, 1869
[3] Special Marriage Act, 1956: A detailed view of The Special Marriage Act, 1956
