How to get Divorce by Mutual Consent in Bangalore

Cosmopolitan Bengaluru (formerly Bangalore) is one of India's most progressive and developed cities, blessed with a benevolent climate and very nice surroundings it’s recognized as Silicon Valley of India. The past decade has seen a mad surge of development, coupled with traffic congestion and rising pollution levels and more alarmingly RISE IN DIVORCE RATES too, at this pace be no surprised after Mumbai and Delhi it will be Bangalore that will have the highest number of divorces. Today stress levels have hit the roof creating a wedge between two people, pushing each farther away and they are just a memory to each other… some common reasons I have heard from my clients are unable to give time to each other, no sexual intimacy, communication problems, alcohol and drug abuse, small apartments to live in with In-Laws (Infrastructure challenges), lack of trust, infidelity, adultery, impotency and sexual orientation.

The fact is that today couples, who are well educated, after realizing that marriage has no future and they are virtually carrying on irretrievably broken down marriage and there is no possibility of reconciliation, after a calm and careful deliberation and taking their respective parents into confidence, couples decide to approach the learned court to seek a divorce by their mutual consent.  

Here are the steps outlined one can refer to…

1.    India is a multi-religion country Divorce my mutual consent carries different process for different religions in India, Hindus are governed under the Hindu Marriage Act,1955, Christians are governed under Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872, Parsis are governed by The Parsi Marriage & Divorce Act-1936, and Muslims under Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986, and finally for NRIs, or Foreign nationals who are married with Indians fall under a secular law called Special Marriage Act, 1954.

2.    Governing rules for couples to seek divorce by mutual consent are as follows

a.    Both Husband and Wife have mutually agreed to dissolve the marriage under no influence / threat

b.    Filing the petition for mutual consent should be done in the jurisdiction where husband and wife live ( document required to prove the jurisdiction is address proof)

c.    Both Husband and Wife are living separately since one year (i.e.. staying in different locations and not under one roof in different rooms, address proof is the document required)

d.    After filing the petition both husband and wife has to wait for 6 months (Cooling Period) to complete the procedure post which they will be declared divorced, but in a recent development in this clause a married couple may not need to wait six months for a separation order in the case of mutual consent and the marriage can be legally terminated in just a week as the Supreme Court on Tuesday 12th September 2017 held that the "cooling off" period in not mandatory and can be waived off.

e.    After the divorce decree is granted, they need to go to the marriage sub-register office and submit a form along with the divorce decree to cancel the marriage certificate

3.    Divorce is filed in the family court of the city; in Bangalore family court is located at H.Siddaiah Road, Sudhama Nagar, Bengaluru, Karnataka 560027. The court operates from 10:00 AM in the morning to 6:00 PM in the evening, Monday to Saturday.

4.    The couple who plan to seek divorce meet a lawyer and share their concerns, post which the lawyer drafts a petition, collects signatures on a few affidavits and applications and depending on a date that suits everyone they decide to file the petition at the family court. Documents required to complete the filing are

a.    Divorce Petition for dissolution of marriage under sections and acts as per the religion

b.    Memorandum of Understanding (in case of child custody, property and assets etc…)

c.    Verifying Affidavits of both Husband and Wife

d.    Joint Affidavit of both Husband and Wife

e.    Application under Section 13 Family Courts Act

f.     Address Proof of both Husband and Wife

g.    Identify Proof of both Husband and Wife

h.    Marriage Invitation Card

i.      Marriage Photograph

j.      Marriage Certificate

k.    Valkalatnama

5.    On the day of filing, both Husband and Wife meet the lawyer at the family court, the lawyer verifies all the documents, prints them on a green colour legal paper of size 8.5” x 14”and aligns them as per the requirements / process outlined by the family court, collects signatures from both husband and wife in the presence of an authorized notary,  affixes the stamps and pays the stamp duty (fees) as prescribed by the court depending on the act and section under which the petition is being filed. This process typically takes not more than a couple of hours and the filing is completed.

6.    The Filing department forwards the case file to the court after verification, If in case there is an error, or any document not as per the prescribed rules, or any other point mentioned does not meet the requirements outlined as per the act and sections the couple are governed, the judge raises an objection.

7.    The Lawyer is notified about the objections and the same needs to be rectified, typically 15 days to 1 month duration is granted by the court to address the objections. The lawyer then reconvenes with the parties (husband and wife) and collects all relevant information / additional documents and submits to the court. In case the objections are not addressed, the case gets dismissed and the procedure needs to be followed all over again.

8.    If there is no error and the filing is done following the correct procedure the court accept the petition, records the statements of both parties and date for next herring is given, this is typically 6 months from the date of filing the petition. There have been some cases where a special prayer is done by the lawyer and parties to wave off the cooling period of 6 months, but this practice is not entertained in all cases. The Supreme Court put an end to this practice in the year 2009, but still in some cases the High Court has granted relief form the waiting period.

9.    During this waiting period / cooling period of 6 months either both Husband and Wife or any one of the party can withdraw the petition, however the courts comedown heavily and wran parties who are withdrawing the consent after filing if the intention is to extort money or draw vengeance, more often than not such instances don’t occur and the process gets completed. The point I am highlighting here is the opportunity.

10.  After 6 months both husband and wife have to present themselves before the court to confirm the mutual consent filed earlier and in this cooling off period as well there has been no reconciliation, in some cases if there is an inclination of saving the marriage counselling can be recommended at the mediation center of the same premises in Bangalore, if nothing works out, the final order is passed and both are declared divorced.

11.  Once the divorce decree is granted the final step is to visit the Marriage Sub Registrar office and get the marriage registration cancelled. This completes the process.

A very important point to remember is during this 6 months waiting period it’s advisable for the (Husband) boy or (Wife) girl not to entertain any second marriage option or engage in a courtship, this is punishable offence and will entertain complications in the proceedings.

Trust this blog was helpful and the reader has fair knowledge on the procedure for divorce by mutual consent that prevails in India, If you need assistance / support or need to discuss about your case feel free to drop a note to me at lawyersonia@gmail.com or call at 9845944896.

Feel free to share your feedback / comment on this post.

Divorce: Husband not bound to maintain a Well-Qualified wife sitting idle

Divorce and Family disputes are at a raise in India and the problem is couples don’t want to solve their problems but are willing to part away without giving a second chance to their relationship. I once heard a comment “Love at First Sight and Divorce at First Fight” which seems to be true these days. In the last couple of years there are multiple instances where women are losing on the alimony claims / maintenance from husband post-divorce. Lawyers arguing and courts agreeing that a well-qualified wife and capable to earn need not fall back on the husband to claim maintenance and the trend seems to be increasingly alarming.

The point of concern is the human angle, women are different than men in many ways, although they are tough enough to face the challenges of time it is practically impossible to simply rule in the favour of husband when the wife is not working and carries no means of income at the time of divorce, first of all the plight in India is women leave their parental home and virtually all relationship ties are killed in the name of kanyadaan ceremony ( a ritual where the kanya (girl) is donated in charity to husband) and the parents bid a good bye to the girl stating now your husband’s home is your home, you will live and die there also we are no more your parents you need to accept your husband’s parents as your parents blah…blah…blah… and then the married women is subjected to various atrocities which push them to seek divorce. The tradition, culture and social stigmas of divorce haunt women more in than men, some cases the judgement in favor of husband have an aftermath making life of divorced women more miserable.

I did some research and gathered statistics of unemployment rate in India that has shot up to a five-year high of 5 per cent in 2015-16, with the figure significantly higher at 8.7 per cent for women as compared to 4.3 per cent for men, says a report by Labour Bureau. According to the fifth annual employment-unemployment survey at all-India level, about 77 per cent of the households were reported to be having no regular wage/salaried person. In rural sector, unemployment rate is 5.1 per cent whereas in urban sector, the rate is 4.9 per cent. The figure was significantly higher among females compared to males.  In urban areas, female unemployment rate was estimated to be 12.1 per cent at pan-India level compared to 3.3 per cent for males. The survey was conducted across all states and union territories during April 2015 to December 2015. A total sample of 1,56,563 households were covered in the survey – 88,783 households in the rural sector and 67,780 in the urban sector.

One very important argument I wish to make to my readers is the importance of siting the facts while filing the maintenance and divorce suits, not all cases are ruled against women, but only those where certain key points are not highlighted why the maintenance is being claimed. An example to quote from one of the cases where the Mumbai Family Court rejected the claim was because the petitioner contended that the respondent is a successful businessman and is doing business not only in India but also in Dubai and other countries, and that his total income per month is more than Rs. 15 lakhs, and therefore considering the status of her husband, she prayed for grant of maintenance of INR 2 lakhs per month. The Court relied on Mamta Jaiswal v. Rajesh Jaiswal, 24^th March 2000, a ruling by Madhya Pradesh high court, where it was held that “well qualified wife is not entitled to remain as an idle and claim maintenance from her husband”.  Now such claims are bound to be rejected… instead if certain facts be strengthened on the current lifestyle of the wife cannot be maintained and her monthly expenses are way beyond INR 2 Lakhs that include rent, home and household expenses, cost of maids / domestic help, cook, driver, health expenses, commutations, loans, parents illness, child and other commitments etc… so all boils down to how things are represented.

I wish to end this blog with a small story on the importance of communication with an anecdote which goes like this

“A blind boy sat on the steps of a building with a hat by his feet. He held up a sign which said: "I am blind, please help." There were only a few coins in the hat. A man was walking by. He took a few coins from his pocket and dropped them into the hat. He then took the sign, turned it around, and wrote some words. He put the sign back so that everyone who walked by would see the new words. Soon the hat began to fill up. A lot more people were giving money to the blind boy. That afternoon the man who had changed the sign came to see how things were. The boy recognized his footsteps and asked,

"Were you the one who changed my sign this morning? What did you write?"

The man said, "I only wrote the truth. I said what you said but in a different way."

I wrote: "Today is a beautiful day but I cannot see it."

Both signs told people that the boy was blind. But the first sign simply said the boy was blind. The second sign told people that they were so lucky that they were not blind. Should we be surprised that the second sign was more effective? 

Life is something similar in the courts too… it all depends on how strong your arguments are and evidence is. If you enjoyed this post do comment, like and share, feel free to reach me at lawyersonia@gmail.com