Introduction
Is It Necessary to be Separated for One Year If a Couple Wants to Divorce Each Other in India Mutually? Clarifications by Advocate Kaushal, Delhi
In the context of the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954, both couples who have decided to dissolve their marriage through mutual consent may have doubts about the provisions of a one-year separation before going for a mutual divorce in India. This blog delves into mutual divorce and legal issues.
If you are seeking the best mutual divorce lawyer in Delhi to help navigate the legal complexities and address your concerns about the one-year separation requirement, Advocate Kaushal provides trusted legal expertise. Reach out to Advocate Kaushal at +91 8287772088 for professional support and guidance.
Mutual Divorce Agreements
How do you define a Mutual Divorce and What is ‘Mutual Divorce’?
Mutual divorce in India is defined as the voluntary agreement of both married persons to terminate their marriage, and they agree on child support, spousal support, and property. This decision is consistent with the provisions of the governing Marriage Acts because such laws require the parties intending to divorce to satisfy some conditions.
Judicial Discretion with the Period of One-Year Separation
President’s Four Important Rulings
The Supreme Court of India has held in its landmark decision of Amardeep Singh v. Harveen Kaur (2020) that the one-year separation period outlined in Indian family law could be disregarded in exceptional situations. This provides an option to avoid the timeline when the parties are beyond the point of reconciliation and cannot take the operations when required for a divorce.
The Appropriate Legal Way of Getting Divorced by Consent
Initializing the Process
The procedure is initiated under a joint petition filed by both parties, which indicates that they intend to dissolve their union after living apart for the mandated time. This is termed the first motion.
Implications of The Cooling-off Period
If the first motion has been lodged, then each party to that motion should wait for a further six months, with the intention of allowing the couple an opportunity to change their minds. However, modified views of the law will enable this time to be bypassed in certain situations, mostly in extreme cases where no other alternative is likely to work as marriage has been exhausted in every sense.
Subsequent Steps
Even after this period or its waiver, the couple then files the second motion for divorce. The court considers such an application and, when satisfied, may issue a decree for divorce, which formally dissolves the marriage.
Examples of Mutual Divorce
Example 1: Separation for less than a year
Raj and Simran did not even wait a full year after filing for divorce because of their intractable differences. Purely out of the clarity of their mutual agreement and the fact that there were no disputes regarding financial or custodial arrangements, they went to court, and within a year, the court waived the one-year waiting requirement due to their special circumstances.
Example 2: Ordinary Process
As Amit and Neha had lived apart for more than one and a half years, they decided to sue for divorce. They observed the six-month cooling-off time, and thereafter, they resolved all the disputes and moved to the second motion amicably. There were no problems that prevented the granting of the divorce.
Frequently Asked Questions
Is a particular norm separating those wishing to adopt the mutual compensation clauses?
Though the one-year separate clause is a usual rule under marriage law and the special marriage law within Hindu practice, courts often allow this clause to be ignored if it is clearly evident that the marriage has irretrievably disintegrated.
What other cases would allow for the one-year period to be ignored?
Change of condition as a result of total disruption of the marriage whereby both parties accept that there is no possibility for reconciliation having been achieved by exchanging modalities on assets and custody.
Are the cooling-off periods still possible for removal, or are the courts still reluctant?
It is possible to remove the cooling-off periods. Some statutory conditions must be satisfied. For instance, the husband and wife must have amicably settled their grievances and only wish to end their marriage as quickly as possible, even if they want a divorce.
Conclusion
In India, divorce by mutual consent is a procedure for couples who agree to and wish to end their marriage. Separation for one year is typically necessary, but the courts are sometimes able to grant it out of their discretion to staff the diverse cases of couples differently. Those interested in this painful process should speak with an attorney before proceeding, in this case, Advocate Kaushal in New Delhi.
If you would like more details please visit courtmarriagegov.in or need legal help, please call Advocate Kaushal at +91 8287772088.
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