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Divorce by Mutual Consent means when both Husband and wife has agreed amicably amongst themselves that they cannot live together anymore and that the best solution is to Divorce, without putting forth any allegations against each other, in the court of law, than such a Divorce petition presented jointly before the honourably court, is known as mutual consent Divorce, it is the quickest form of divorce in India.

Law and section

  1. Section 13B of the HMA Act 1955 provides for divorce by mutual consent. period of separation is 1 year
  2. Section 28 of the Special marriage Act, 1954 provides for divorce by mutual consent.
  3. Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of separation is 2 years

Conditions required under section 13B of the Hindu Marriage Act

  1. Husband and wife have been living separately for a period of one year or more,
  2. That they are unable to live together,
  3. And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved. Under these circumstances a Divorce by Mutual consent can be filed.

Advantages of Mutual Consent Divorce

  1. Divorce By Mutual consent saves time, money and energy for both,
  2. Leaves no room for unnecessary quarrel and most importantly avoid washing your dirty linen in public.

Process of Mutual Consent Divorce

In all there are two court appearances in a mutual divorce

  1. First A joint petition signed by both parties is filed in court . 
  2. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Hon'ble Court.
  3. Thirdly The 6 month period is given for reconciliation, (the hon'ble court gives a chance to the couple to change their mind)
  4. Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.
  5. Finally Divorce decree will be granted as the Hon'ble Court may deem fit.

Can Mutual Consent be Withdrawal

  1. Before a decree for mutual consent is passed, the question arises whether the party can withdraw its consent or not. At times, the question has also come before the Court and there was a conflict of opinions on the point whether the parties to divorce can withdraw its consent unilaterally. The Bombay High Court in Jayashree Ramesh Londhe v. Ramesh Bikaje Londhe. expressed the view that crucial time for the consent for divorce under section 13B was the time when the petition was filed.
  2. If the consent was voluntarily given, it would not be possible for any party to nullify petition by withdrawing the consent. The Court took the support from Order 22, rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs to the suits. The similar view was adopted by High Court of Delhi in Chander Kanta v. Hans Kumar. and Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta.

Neccessity of Reconciliation

  1. Even if dissolution of marriage by mutual consent is sought by a joint petition of the husband and the wife still it is incumbent on the court to comply with the mandatory provisions of s. 34(2) of the Act to make attempt for reconciliation between the parties.

Appeal and revision.

  1. The maintainability of appeal though open to question, order is open to revision either under s.115 of the Code of Civil Procedure or under Art. 227 of the Constitution of India.

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