Prior to 1976, Special Marriage Act, 1954 was the only Indian statute dealing with the provision of divorce by mutual consent. In the above stated Act the marriage has to be solemnized under the same Act to take help of this resort. The court before granting divorce by mutual consent has to satisfy itself that the consent has not been obtained by force or fraud. Under section 28 of Special Marriage Act, 1954 first requirement is that the couple should have been living separately for a period of one year before presenting the petition to the District Court. And secondly a cooling off period of 6months but not exceeding 18months and if the petition is not withdrawn then the court can after hearing the parties grant them divorce.
Then in 1976 through an amendment in Hindu Marriage Act, 1955 the Parliament of India inserted the concept of Divorce by Mutual Consent. This concept helped in ending the futile relationship of the couple. It also helped in ending the long -term proceeding.
The mutual divorce parties are always baffled with the issues of child custody, alimony, jurisdiction of the court, in what time mutual consent divorce is to be sought. For this it is necessary to consult an experienced lawyer and take the use of technology. Two motions have to be completed in order to take the resort of this option.
Sec:13 B of Hindu Marriage Act talks about Divorce by mutual consent. There are two requirements of this section firstly, the couple had been living separately for a year which will be immediately preceding the presentation of petition and secondly, cooling-off period of 6months but not more than 18 months is given with an intention to give time and opportunity to both the parties. The marriage For getting the consensus in Divorce by mutual consent both the parties has to agree to the mutual terms of maintenance and alimony.
Talking about the other laws firstly, there is no explicit statutory provision for divorce by mutual consent in Muslim Law. Secondly, in Parsi Law by amendment in 1988 in Parsi Marriage and Divorce Act, 1939 provision for divorce by mutual consent was added. There is no interregnum between filing of petition and the second motion. Parties should be living separately for a year with mutual consent and if court is satisfied that there is no fraud or force then can grant the same. Thirdly, through an amendment in Indian Divorce Act, 1869 in 2001 divorce by mutual consent was added. Two motions have to be followed i.e. living separately for two years and an interregnum of six months. And the Court needs to satisfy itself of any averments in petition.
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