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.
