In India, just like the marriage laws, even the divorce laws are different for different religions. Hindu Marriage Act, 1955 covers Divorce laws for Hindus (including Sikhs, Jains and Buddhists). For Muslims, their Personal laws of Divorce, Dissolution of Marriage Act 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986 are applicable. The secular law – Special Marriage Act, 1954 governs the inter-religion marriages.
Mutual Divorce is when both the parties (husband and wife) agree mutually to separate i.e. they agree that living together is impossible and that Divorce is the best solution. This article explains mutual divorce under different laws for different religions in India.
- Mutual Divorce under Hindu Laws
Mutual Divorce for Hindus is governed by Section 13B of the Hindu Marriage Act 1955. Under this Section, there are several requirements that need to be complied with to file for a Mutual Divorce:
- The parties should have been living separately for a minimum period of one year.
- No reconciliation or adjustment is possible between the parties and they have failed to live together.
- The parties have consented to the agreement of dissolution of marriage.
- The parties can withdraw the petition to divorce even at the instance of one party. This can be done within a period of six months from the date of the presentation of the petition for mutual divorce.
The divorce case can be filed in the appropriate family court. The procedure begins with the filing of a joint petition signed by both the parties with the help of a divorce lawyer. The petition must contain a statement by both the parties that due to differences that cannot be fixed, they can no longer stay together and thereby seek divorce. Both the parties are required to appear in the family court. After the petition is scrutinised, the statements of the parties will be recorded. There are two motions in mutual divorce under Hindu law.
After the statements are recorded, first motion order is passed by the court after which a 6 month period is given to the parties where the parties shall file the second motion. This is required to be filed within 18 months from the date of the presentation of the petition for the first motion. Either party can withdraw their consent at any time before the passing of the decree. Once the Court is satisfied, that the differences are irreconcilable, and that divorce is the best option for both parties, it will pass a decree of divorce. This is when the divorce becomes final.
- Mutual Divorce under Muslim Law
There are two categories of divorce under Muslim law – judicial and extra-judicial. Mutual Divorce for Muslims falls under the extra-judicial category. It is based on the belief that since divorce is an act of the parties; the court does not need to intervene. ‘Khula’ and ‘Mubarat’ are the two kinds of mutual divorce/agreement.
- ‘Khula’: This kind of mutual divorce is said to be an agreement between the spouses (husband and wife), to dissolve the union in lieu of a part of the woman’s property (as compensation) to the husband. Actual delivery is not mandatory for the validity of the divorce even though consideration is an important aspect of the Khula system. Once the husband gives his consent, an irrevocable divorce takes place and the husband cannot cancel the said ‘khul’ if the consideration has not been paid.
- ‘Mubarat’: Under this kind of divorce, it is important that both the husband and the wife must desire divorce, and the proposal for divorce can arise from either side. Once such offer is made, the other side should accept it. Once accepted, the divorce becomes irrevocable. There are some variations for Sunnis and Shias under this form of divorce. For Sunnis, once the parties enter into a ‘mubarat’ the rights and obligations of the parties are put to an end. For Shias, there needs to be a proper form, i.e. the word ‘mubarat’ is required to be followed the word ‘talaq’ for the divorce to actualise. These words must be said in Arabic. Moreover, the intention to dissolve the marriage shall be expressed in clear words.
- Mutual Divorce under Christian Law
Divorce Act 1869 governs divorce for Christians in India. Dissolution of marriage by way of mutual consent has been given under Section 10A of the Act. The petition for mutual divorce can be filed by both the parties in the appropriate District Court. The petition should contain the grounds:
- That the parties have been living separately for more than a year
- That it is not possible for them to cohabit together
- That the decision to dissolve the marriage is a mutual decision of both the parties
The petition can be withdrawn after 6 months from the date of presentation of the mutual divorce petition, but before a lapse of 18 months from such date.
- Mutual Divorce under Parsi Law
Divorce for Parsis is governed by the Parsi Marriage and Divorce Act, 1936. Section 32B of the said Act lays down the rules for mutual divorce. There are certain reconditions that are required to be fulfilled in order to be able to get a mutual divorce decree from the Court:
- It is mandatory to mention in the petition the ground that they have been living separately for a period of one year or more
- It is also important to mention that they have not been able to live together, and
- The petition should state that they have mutually agreed that their marriage needs to be dissolved
- A petition/suit for mutual divorce can only be filed after the lapse of one year since the date of their marriage
Once the Court is satisfied after its inquiry, that the marriage had been solemnized under the Parsi Marriage and Divorce Act, that the facts mentioned in the petition are true and the consent of both the parties is present for the mutual divorce without any force or fraud, it would pass a decree of mutual divorce.