Chapter12 Divorce by Mutual Consent

Описание: Divorce by Mutual Consent is a key concept recognized across major personal laws in India, including the Hindu Marriage Act (HMA), Special Marriage Act (SMA), Parsi Marriage and Divorce Acts, the Divorce Act, and Muslim law.
1. Statutory Law (HMA, SMA, etc.) Requirements: The provisions for mutual consent divorce are largely identical across these Acts. A petition is presented by both parties based on three main grounds:
• Separation: They have been living separately for one year or more. "Living separate" means not living as husband and wife, regardless of whether they occupy the same house.
• Breakdown: They have not been able to live together, implying the marriage has irretrievably broken down.
• Agreement: They have mutually agreed the marriage should be dissolved.
2. Procedure & Consent:
• Two Motions: After the first petition, the parties must move a second motion no earlier than six months and no later than eighteen months later. If no motion is made within eighteen months, the petition stands dismissed.
• Court Inquiry: The court must be satisfied that the consent of neither party was obtained by force, fraud, or undue influence.
• Withdrawal: A spouse is free to unilaterally withdraw consent at any time before the final decree is passed.
• Waiver of Waiting Period: In certain circumstances, especially where the marriage is clearly irretrievably broken down, courts have waived the mandatory six-month "cooling period".
3. Muslim Law Forms: Muslim law recognizes two forms of divorce by mutual agreement:
• Khul (or Khula): Initiated by the wife with the husband's consent. The wife gives consideration (often releases her dower or mahr) for her release, making it a form of divorce by purchase.
• Mubaraa (or Mubarrat): Occurs when aversion is mutual. The proposal may emanate from either spouse. Compensation (often forbearance of dower) is usually given, but is not always an essential part of the transaction.
• Nature: Both khul and mubaraa are irrevocable divorces (bain). They are primarily acts of the parties and generally do not require judicial intervention.

--------------------------------------------------------------------------------
Textbook Source Credit
Textbook Title: Chapter 12 - Divorce by Mutual Consent (Family Law) Author: Paras Dhawan Page Reference: 243-248

--------------------------------------------------------------------------------