Mutual Consent Divorce Lawyer in Delhi
Advocate Pranesh Gupta & Associates, The Best Mutual Consent Divorce Lawyers in Delhi. Have years of Expertise and experience with specialization in Mutual Consent Divorce.
‘Divorce/ Mutual consent divorce’ law in India
Divorce/ Mutual consent divorce law under ‘The Hindu Marriage Act, 1955’
Divorce can be filed under ‘The Hindu Marriage Act, 1955’ and ‘The Special Marriage Act, 1954’ in India. The Muslim Divorce is governed by their personal laws which is ‘ The Muslim Personal Law (Shariat) Application Act, 1937’ The Muslim law has not been codified in India till date.
As per section 2 of this act, any person who is a Hindu by religion in any of its forms or development, including a Virashaiva, a Lingayat or a follower of the Brahmo, Parrthana, or Arya Samaj and to any person who is Buddhist, Jaina or Sikh by religion
The person who is Muslim, Christian, Parsi or Jew by religion does not come under this act.
As per section 14 of this act, no petition for divorce to be presented within one year of marriage, it shall not be competent for any court to entertain any petition any petition for dissolution of a marriage by a degree of divorce, unless at the date of the presentation of petition one year has elapsed, since the date of marriage. But in exceptional cases, application may be filed for divorce petition being filed before one year in the High court for allowing to file divorce petition before one year.
As per section 13 of this act, Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition prescribed by either the husband or the wife, be dissolved by a decree of divorce on the ground that other party-
- has after the solemnization of the marriage, has voluntary sexual intercourse with any person other than his or her spouse: or
- ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
- ib) has deserted the petitioner for continuous period of not less than two years immediately preceding the presentation of the petition; or
- has ceased to be a Hindu by conversion to another religion: or
- has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such extent that the petitioner cannot reasonably be expected to live with the respondent.
- has been suffering from a virulent and incurable form of leprosy:; or
- has renounced the world by entering any religious order ; or
- has not been heard of a being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
As per section 13B of this act, a petition for dissolution of marriage by a decree of divorce may be presented to the district court by the parties to a marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
That the mutual consent divorce is done in two phases call first motion and second motion. After passing order on first motion, second petition has to be filed within six month to eighteen months. The period of six months are not mandatory but declaratory, it can be waived off by the court on certain ground on presentation of an application with second petition.
As per section 10 (1)of this act, either party to marriage, whether solemnized before or after the commencement of this Act, may present petition praying for decree of Judicial separation on any of the grounds specified in sub section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub- section (2) thereof, as grounds on which a petition for divorce might have been presented.
Section 10 (2) where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent.
As per section 9 of this Act, When either the husband or the wife has, without reasonable excuse, withdraw from the society of the other, the aggrieved party may apply, by petition the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
GROUNDS FOR DIVORCE UNDER ‘THE SPECIAL MARRIAGE ACT, 1954’
As per section 27 (1) of the act, subject to the provisions of this act and to the rules thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent
2(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse: or
(b) has deserted the petitioner for continuous period of not less than two years immediately proceeding the presentation of the petition; or
( c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal code; or
(d) has since the solemnization of the marriage treated the petitioner with cruelty
(e) has been incurably of unsound mind, or has been suffering continuously or intermittently form mental disorder of such a kind and to such an extent that petitioner cannot reasonably be expected to live with the respondent.
under section 28, mutual consent can be filed under the Special Marriage Act, 1954 in two phases.
Divorce under Islam
The husband or wife may file for divorce process on their own will or by mutual consent. The husband and wife can get a divorce by will under the Dissolution of Muslim Marriage Act, 1939, which also grants various rights to both the man and woman to get a divorce. Divorce in Islam is divided into the following on the basis of will:
- Talaq:Talaq means freedom from the ties of marriage or dissolution of marriage by husband in accordance with the law. Islamic divorce laws recognize a man’s absolute right to give divorce to his wife without assigning any reason and at his own will. The law does not consider such talaq invalid even if the man is in jest, intoxicated or the wife is not present at the time when a husband announces talaq.
Talaq may be oral or written, in any form or expression, in absence of any witness and at the complete will of the husband. The word talaq must be a clear indication of the husband’s will to dissolve the marriage. There are various forms of talaq under divorce in Islam which allow a man to divorce his wife at his complete will:
- a) Talaq-i-Sunnat:This type of divorce in Islam is further divided into:
Ahasan: Ahasan consists of one divorce pronouncement during the period of Tuhr i.e. purity or the time between 2 menstruation cycles. The condition of Tuhr is applicable only in the case of oral divorce and not in the case of written talaq. Divorce in the form of Ahasan can be revoked any time before the iddat period gets over, thus, preventing any reckless decision of divorce by the husband. No physical relationship must be made between husband and wife during the iddat period.
Hasan: Hasan requires a husband to pronounce talaq three times during 3 successive periods of tuhr, which becomes final and irrevocable after the last pronouncement. No physical relationship must be made during this period of Tuhr.
- b) Talaq-i-Biddat: Biddat means instant divorce. It is the controversial triple talaq or 3 divorces in Islam, which was held unconstitutional by the Supreme Court of India and struck down. Triple talaq or 3 divorce in Islam is the instant divorce by the husband in which there is no waiting period for the talaq to be valid. When the husband pronounces the word ‘talaq’ three times, the divorce is final instantly.
Triple talaq has been a matter of debate for decades, with many countries striking it down. However, the 3 divorces in Islam remained legal in India, until the Supreme Court held triple talaq to be unconstitutional. The Lok Sabha also has passed the Triple Talaq Bill, making the practice crime and subject to 3 years imprisonment if practiced.
- Ila:Under this type of divorce in Islam, the husband pledges to refrain from sexual relations with his wife for a period of 4 months. After this period, the marriage automatically dissolves. However, if the husband consummates his wife during this period, Ila is canceled.
III. Zihar: In this type of divorce in Islam, the husband gives his wife a title equal to any other woman, like his mother or wife. After such a comparison, the husband has to refrain from cohabiting with this wife for 4 months. This type of divorce can be revoked if the husband resumes cohabitation during those 4 months and the husband observes fast for 2 months, provides food to 60 or more people or frees a slave. However, at the end of this period, the wife is assigned the right to approach the court to get a judicial divorce or ask for restitution of conjugal rights.
The law recognizes an Islamic woman’s rights and grants her the right to get a divorce from her husband in 2 ways:
- Talaq-i-Tafweez:The Muslim man has the option to delegate the power of divorcing from his wife or any other person absolutely or imposes some conditions, either permanently or for a temporary period. If the power is assigned to the wife, she has the right to exercise it, and if she uses this power, the divorce is valid and final.
- Lian: If the husband falsely accuses his wife or adultery or unchastity, the law recognizes an Islamic woman’s right to get a divorce on the ground of character assassination. This type of divorce in Islam is only available to an Islamic woman if the allegations by the husband are false and voluntary.
- Divorce by mutual consent: Islamic divorce laws recognize an Islamic woman’s right to ask for a divorce if she does not want to live with her husband even without his fault. The marriage can be dissolved by a divorce contract called khula in which the terms and conditions of the divorce are laid down. The Islamic woman has the option to include a provision to relinquish her dower entirely or partially. However, the consent of the husband must be free to enter into a khula and not influenced by force or coercion.
There is another type of mutual consent divorce in Islam known as Mubarat in which the offer for divorce may be made by either husband or wife. When the other spouse accepts the divorce offer, it becomes final and irrevocable. The period of iddat has to be observed after this type of divorce in Islam.
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