Any marriage which is solemnized between two individuals can be dissolved by a decree of divorce. A decree of Divorce is passed when there is an irretrievable breakdown of marriage i.e. there is no possible chance of redemption. When both the parties to the marriage agree for a divorce, they can file a petition for dissolution of marriage together. Once, such a petition is allowed the divorce becomes final. This is known as divorce by mutual consent.
How to file for Divorce?
A divorce petition by any person who is a Hindu, Sikh, Buddhist, or Jain by religion can be filed under the Hindu Marriage Act, 1955. A divorce petition by a Muslim can be filed underDissolution of Muslim Marriage Act. A divorce petition by two individuals belonging to separate religions can be filed under the Special Marriage Act or any other Act as applicable.
Divorce by Mutual Consent under HMA
A petition for divorce by mutual consent is filed under Section 13 B of the Hindu Marriage Act. The petition is jointly presented in the court of competent jurisdiction as mutually decided by the parties on the ground that they have been living separately for more than one year or more, that they have not been able to live together and that they have mutually agreed that their marriage should be dissolved. On the presentation of the petition, once both the parties state the factum of their separation, the court may after a period of six months and not later than 18 months, upon being satisfied and after making such inquiry as it thinks fit, can pass a decree of divorce.
Cooling off period and its waiver
The six months’ period also known as the cooling off period is given to the parties to reconsider their decision and is a channel to aid any possibility of conciliation between the parties. However, this period can now be waived off if the period of separation between the parties includes the 6 months’ period i.e. one year plus six months, all efforts of conciliation between the parties have failed, the parties have settled their differences including alimony, custody etc. and the waiting period will only prolong custody. It is always advisable that the parties filing for divorce by mutual consent should carve out a settlement agreement with respect to alimony, custody, division of assets jointly owned by them etc. This helps in speeding up the entire process of the trial and also helps in getting the cooling off period waived off.
Divorce by NRI Couples
NRI couples can file for divorce in an Indian Court. The decree for Divorce given by and Indian Court would be recognized abroad as well. The NRI couple can file for divorce in a foreign court as well i.e. the court under whose jurisdiction they reside. The Indian Courts recognize decree of a foreign court provided it is passed by a court of competent jurisdiction and recognizes the law of India where applicable. For instance, the Hindu Marriage Act would be applicable to divorce petitions filed by Hindu individuals.