In India divorce and separation are perceived to be relatively rare events and available data on the subject has been described as ―quantitative gossip. While quantitative data are lacking, there is rich multi-disciplinary literature on various aspects of marital stability in India. This paper draws on this literature to first contextualize the key aspects of marriage and the socio-cultural and legal systems that influence durability of marriages in India. Following this, the paper presents estimates of prevalence, trends and variations in divorce and separation using data from a large nationally representative survey. Finally, using education as a broad measure, the paper investigates the impact of social changes on durability of marriages between 1987 and 2007. The findings reveal an upward trend and significant variations by region, religion, rural and urban, and number and sex of children in divorce and separation. The findings show that marriage among higher educated are more durable and that the difference between higher and lower educated women has widened over time.
In the context of the growing family disputes, the Government of India established the Family Courts Act in 1984 with a view to promote conciliation and speedy settlement of family disputes. Thus, the Family courts are specialized courts which were established with the objective of maintaining the welfare of the family by utilizing a multidisciplinary approach to resolve family problems within the framework of law. The family courts aim at securing the legal rights of the individuals on the one hand, and undertake the role of a guide, a helper and a counsellor on the other, to enable families to cope with their problems, and establish family harmony, following the principle of dignity of the individual and equality of the status of both the sexes. Family courts have been established to provide facilities of a legal and non-legal nature, so that all the issues can be resolved in one forum.
In the Indian Family laws, there are different personal and special matrimonial laws in force covering matrimonial and allied matters. The family court has jurisdiction to settle the disputes under all these enactments. Thus the Family Court Act is only a procedural statue. Hence the Act does not override personal laws, but provides an alternative adjudication forum of dispute resolution. The right and obligations of the parties to the disputes are to be decided as per their personal or matrimonial laws. Though the Indian family courts provide the alternative dispute resolution through mediation and counseling, it is inefficient in many occasions due to the unskilled mediators and inefficient counseling system.
MUTUAL CONSENT DIVORCE:-
Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses Mutual Consent Divorce was brought by the India Parliament vide Amendment in the year 1976 in the Hindu Marriage Act.
Mutual Consent Divorce has brought relieve. As a mutual consent divorce lawyer, it is desirable to suggest to parties to understand the futility of long drawn litigation and thereby proceed towards mutual consent divorce.
As per law, duration/time of obtaining mutual consent divorce is six months. Although, parties have option of filing the second motion petition any time between six months and eighteen months from the date of the filing of the Mutual Consent Divorce Petition.
Parties desirous of Mutual Consent Divorce are always perplexed as to how to initiate the process, role of court, terms and conditions of mutual consent divorce, issues of maintenance and child custody, duration of mutual consent divorce, place where Petition for mutual consent divorce can be filed and other allied questions. For the purpose clarity, you just need to understand following bullets point:-
Spouses should talk to each other about future course. If both spouses reach to a conclusion that marriage is not workable they should ease out the tension surrounding them and accept that their marriage has broken down. Forget the fear of society. Nobody knows situation better than husband and wife themselves; also impact on the children.
Accept that there can be agreement even in disagreement.
If there are child(ren) involved, spouse should decide amongst themselves who is going to be have the physical custody of the children, duration of visitation rights and interim custody during summer and winter vacations and other holidays. Both parents are equally competent to take the custody of the children. It’s the understanding and agreement between parties which prevails subject to the welfare of the minor child(ren). Parties can have understanding of joint custody or shared parenting in mutual consent divorce process.
Next important aspect is financial settlement. There are various aspects of financial settlement which includes alimony, maintenance, house, education expenses, higher education expenses, marriages, stridhan joint investments, joint accounts and many other. As a mutual consent divorce lawyers, we provide platform to parties to discuss these issues in calm atmosphere and reach to their own solutions. We as a mutual consent divorce lawyers provide different options using our vast experience in the field to resolve issues affecting the chances of settlement. Sometime, emotions between spouses are running so high that logic fails.
TERRITORIAL JURISDICTION IN CASE OF MUTUAL CONSENT DIVORCE:-
Petition for mutual consent divorce can be filed at any of the following place:-
• Place where marriage had taken place
• Place where husband and wife last resided together.
• Place where wife is residing at the time of filing of the Petition
Once petition for divorce by mutual consent is filed, parties presence are required in the Court for recording of the statement. In the event one of the party is unable to come, such party can appear through power of attorney. Such power of attorney preferably should be a family member of the spouse. Once statement is recorded, it is commonly called First Motion has been granted.
After passing of first motion, parties are called upon to wait for six months period before moving Petition for second motion. This period is extendable unto eighteen months. This six months period in mutual consent divorce is generally called cooling-off period. Six months period are given to parties to think their relationship again. It is given for reconciliation.
This six months period can be waived by concerned family Court upon filing an Application for waiver of six months. Family Court has discretion to waive of the period. Thus, time period of six months can be waived off and may be reduced to as less as 15 days or a month or so.
After six months period or after waiver of six months, if parties have been unable to resolve their differences, they will have to appear in the Court again. Statement of parties would be recorded again.
During the period of six months i.e. before moving second motion, both parties have liberty to withdraw their consent for divorce.
After this Court passes an order dissolving the marriage by granting decree of divorce and thereby marriage stands dissolved.
Mutual Divorce under the Hindu Marriage Act:-
Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court. Mutual consent means that both the parties agree for peaceful separation. Section 19 provides 5 options. It enables the parties to file the Divorce Petitions under any one of them as per their convenience.
Clause (i) of Section 19 gives the option of filing the Petition where the marriage was solemnized.
Clause (ii) of Section 19 states that the Petition is to be presented where the Respondent resides. In a Contested Divorce, whosoever (Husband or Wife) files the Petition is the Petitioner and the other becomes the Respondent. So if a Husband (Petitioner) files a Divorce Petition, then he would be required to file it before a Court where the Wife (Respondent) resides. The same shall apply in the opposite case as well
Now, Clause (iii) of Section 19 provides states that a Petition can be filed where both the Husband and Wife last resided together
It is also important to consider the meaning of resides for the purpose of territorial jurisdiction. Indian Courts have time and again ruled that to entertain a Divorce Petition, the residence needs to be a permanent one. Casual visits made by a party to a place cannot be regarded as permanent or even temporary residence. The occasional stay in the premises jointly for a day or for a temporary period cannot satisfy the requirement of the residence.
The correct legal meaning of last resided together too would have to be considered. There must be intention of both the parties to reside together at particular place for some length of time, even though the actual time spent over there might be short. So a couple may go for a honeymoon to a different state and stay there for few weeks or even a month, but that would not come under the definition of last resided together.
There is an advantage given to a Wife if she institutes a Divorce Petition. In case, the Petition is to be filed by the Wife, then Clause (ii) of Section 19 would not be applicable to her. Clause (iii-a) of Section 19 states that in case the Petitioner is the wife, she can file the Petition where she is presently residing,
Clause (iv) of Section 19 provides an option to a Husband or Wife to file a Petition against the other in case the other spouse is either beyond the jurisdiction of Indian Courts or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive, i.e. his relatives and friends. This provision is important to safeguard the liberty of a spouse who has been deserted, under the conditions mentioned above, by the other and wants to break-free from the legal bondage of marriage.
There exists a co-relation between legal change and social change. Law cannot be understood without social facts which gave it birth. Law is a social derivative and it depends upon the environmental conditions and human behavior at a particular time and place, perhaps, cannot be denied in our contemporary society because denial of these would lead to bigger results and it will clog all social progress and the institutions which have outlived their age and utility, would lead to wholesale disintegration and degeneration of society and humanity. If society is to live in peace and individual in happiness our matrimonial laws must show a progressive development so that their conflicting interests could be adjusted. The matrimony plays a significant role in the social set-up of a nation. It is the basis of the institution of marriage which signifies a complete physical, mental and spiritual union of man and woman as husband and wife to establish a family. Happy homes are sign of a healthy and prosperous society. But, unfortunately, the matrimonial disputes are increasing day by day and this lead to disintegration of family which badly affects social structure. The lines by Mr. Justice (Retd.) H.R. Khanna of the Supreme court of India is relevant in order to look into the real problem.
“Sick marital relations pose a problem not merely for the related spouses, they have much wider implications. They have their repercussions and impact upon society and the same can give rise to social problems. Harmony in society in inconceivable where there are dissatisfied parties that make a home which is one of the most crucial units in the hierarchy of social institutions… Broken homes, strained marital relations are only a source of extreme anguish for the individual concerned, they are also symptomatic of social malaise and call for rational and sympatric approach.”
With the fast changing attitude towards marriage as an institution and its liquidity in India, the subject of dissolution of marriage is receiving and will continue to receive increasing importance in the field of family law.