Mutual Consent Divorce

 

Mutual Consent divorce amongst Hindus takes place under Section 13B of the Hindu Marriage Act 1955.

The divorce takes place in 2 motions 13 B (1); the first motion and 13 B (2); the second motion, with an interval of 6 to 18 months which is called the cooling-off period to be utilized by the parties to reflect whether they are absolutely sure of about their decision.

Prior to filing the First motion, the parties have to be separated for a minimum period of 1 year. The expression living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife.

Documents required –

• Marriage Invitation Cards,
• Wedding photographs,
• marriage certificates,
• ID proofs Aadhar cards

Waiver of the cooling period-

The Hon’ble Supreme Court has held in Amardeep Singh vs. Harveen Kaur (12.09.2017 – SC)that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following:

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of the child, or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

Evidence via video-conferencing/ Power of Attorney-

It has been held in Shilpa Chaudhary vs. Principal Judge and Ors. AIR2016All122 that dispensation of justice entails speedy justice and justice rendered with the least inconvenience to the parties as well as to the witness. If a facility is available for recording evidence through videoconferencing, avoids any delay or inconvenience to the parties such facilities should be resorted to. There is no requirement that the witness must be required to come to court and depose in the physical presence in the court. A general power of attorney holder can depose and also lead evidence on behalf of his principal.