FAQ on Divorce

FAQ's

17. If during the period of six months after the filing of petition for divorce by mutual consent, any on of the parties withdraws the consent, then what options the other party is left with in order to continue to get the decree for divorce? How can one withdraw the consent?

Under Section 13-B of the Hindu Marriage Act of 1950, the parties can seek divorce by mutual consent by filing a petition before the court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months where after the party has to again approach the court for making a second motion confirming the mutual consent earlier given in the petitioner filed by them. It is only after this second motion is made that a decree of the divorce is granted by the court. During this period of 6 months when the petition is pending , any of the spouse is fully entitled to withdraw the mutual consent. In such an eventuality no divorce decree can granted by the court. Refer the judgement of the Supreme Court dated 18 April 2011 here. The consent can be withdrawn during this period of 6 months by either of the spouse, by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. The court is bound under such circumstances not to grant a decree of divorce. There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950 . In such a situation divorce can be granted only on certain specified grounds as mentioned in the said provision . These grounds include cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.

18. What is the right of husband on the child at the separation?

After divorce/separation, the husband can move an application for the custody of a child under Guardian & wards Act and if the parties are Hindu then under Hindu Minority & Guardianship Act. The husband also has a right to claim the right of meeting the child and to take the child during holidays till the disposal of the petition for custody. The parties can ask for the above said interim relief from the Court.

19. Explain me the procedure of filling petition of Divorce?

According to the Indian divorce laws there are mainly two ways to obtain you divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-cast marriages under the Special Marriage Act, 1956. Your lawyer will draft a divorce petition based on the grounds for filing a divorce in India as mentioned in the Indian divorce laws. You will be expected to provide your lawyer every necessary details and documents that would enable him/her to file the case in the relevant court.

20. If the spouse consents for remarriage, is it legal without getting divorce in court in India?

Remarriage without getting divorce is a punishable offence with seven years imprisonment if the wife prefers the complaint at any point of time even if she had consented for the remarriage initially.

21. Explain me the Mutual Divorce Procedure?

Getting a divorce through mutual consent should always be preferred over the contested divorce as the procedure of getting a mutual divorce is simpler in comparison to that of the other. For a mutual divorce procedure in India, you can come to an agreement with your spouse where you may resolve all kinds of disputes regarding maintenance, custody of children and such. Under Section 13B of the Hindu Marriage Act, a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about their inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage.

The filing of a mutual divorce by both the husband and the wife is termed as ‘the first motion’. A couple can file for a second motion after a gap of six months. The six months time span is provided to the couple so that they get the time to reconsider their marriage. A divorce decree can be passed before the completion of the six months term if all the mandatory requirements for the divorce are sufficed. If the divorce file is not withdrawn within eighteen months the court passes a divorce decree. Incase one of the sides withdraws his/her petition the court initiates to make an enquiry. If the concerned side disagrees to give the consent, the court holds no right to pass the divorce judgment.