There was a time when divorce was possible on the fault, wrongdoing or actions of one person only and he/she was punished for his /her fault. If both the parties were at fault, they could not apply for divorce; they were asked to resolve the differences and live with them. But later, a no-fault theory was developed in which the parties to marriage could obtain a divorce even if none of the parties was at fault if they both mutually agreed to take divorce and have not been able to live together and had been living separately for at least one year. They can together move the petition for divorce by mutual consent to the District Court. But the Court must check that there is no coercion, undue influence or misrepresentation and that all the conditions are fulfilled for obtaining the divorce.
Essentials for the divorce by mutual consent
Both the parties must agree to it: Consent should be given willingly and not by any force or under the influence of any person. If one of the parties withdraws its consent during the pendency of the petition then the divorce cannot be obtained by mutual consent.
Living separately for one year or more: They have to prove that they had been living separately for at least one year. Living separately under this context means that they had not been living as husband and wife. It is not in relation to the place of living but the intention. They may be living under one roof but not as husband and wife, then they can apply for the divorce by mutual consent. They may be living in separate places but still as husband and wife by fulfilling matrimonial obligations.
Have not been able to live together: They have to prove that it is not possible for them to live with each other compatible. Mere small fights or trivial causes cannot be the reason to obtain by mutual consent.
Time period: When once the petition is filed, the court gives the time period of 6 to 18 months to reconsider their decision and come together after 6 months for the case. But if they come after 18 months then the court will not consider their case as it presumes that they might have changed their decision of obtaining a divorce. If they now want a divorce they would have to file a fresh petition in the district court.
Checking by the Court under section 23b of the Act: The Court makes sure that there is no fraud, use of force, coercion on any of the party for giving consent under such divorce and their marriage was a valid marriage.
The Court after checking all the essentials give the divorce.
Need of the divorce by mutual Consent:
- Sometimes more harm is done when we keep on holding something than letting it go. So if it is not possible to carry on with the institution of marriage, then it is better to come out of that.
- Divorce can be obtained without proving the other person guilty, it is better and easy.
- Money and time are saved in proving each other wrong.
- There is no insult in front of the relatives and society.
Characteristic of Divorce by Mutual Consent
- It is both difficult as well easy to obtain such a divorce.
- It is difficult because the court cannot give divorce on a trifling cause and they have to wait for at least 6 months for obtaining it.
- It is easy because there is no burden to prove the other party guilty.
- It is the only option when there is an irretrievable breakdown of the marriage.
Withdraw of consent
The consent can be withdrawn at any time during the pendency of the suit but not after the petition.
When the conditions are such that a marriage cannot be maintained further by the parties then it is advisable to come out of such institution by divorce on the consent of both the parties without proving each other guilty. It is beneficial for the society, individuals as well as save the time of the court. But the consent must be real and the court gives a time period of 6-18 months to reconsider their decision because sometimes parties may come over to the court for divorce for a minor cause which otherwise causes divorce to be so simple and prevent parties from a walk in and walk out relation.