Name- Anindita Deb

PRN No.- 20010224161

Division- C
Course- BBA.LLB.
Batch- 2020-25

A Comparative Study relating to the legal position of divorce by

mutual consent under different Marriage Laws in India

Introduction

In every religion around the world, marriage has traditionally been regarded as a sacred
union. Two members from two separate households marry and form a new family together. In
any case, marriage is still a contract, and just like any other contract, it can be terminated.

When both husband and wife agree that they can no longer live together and that divorce is
the best choice, it is known as divorce by mutual consent. They would file a petition jointly
before the honourable court, without making any charges against each other.

According to research, mutual consent is one of the quickest ways to get a divorce in India, as
other alternatives take too long. All marriages solemnised before or after the Marriage Laws
(Amendment) Act 1976 can be dissolved, according to the law, if the parties to the marriage
accept the same in front of the court. This project analyses the legal framework related to
mutual consent divorce under different Indian Marriage Laws.

Under the Hindu Marriage Act, 1955

The provisions under Hindu law are given within Section 13B of the act.

Essentials of mutual consent divorce

 Parties have to be living separately: According to Section 13(B), the spouses must
have, before filing the petition, they had lived separately for at least a year to mutually
dissolve their marriage.

This one-year term of separation between the parties must begin immediately before the
petition is filed. As the Section states, "living separately" doesn’t always have to imply
 "living in separate locations." Even if the parties live within the same four walls and share
the same roof, they may still be distant. If there is such a scenario, they are not deemed to
be living as husband and wife, and instead are considered as separately living.

 Parties have been unable to live together: A lot of times, when the spouses in a
marriage can no longer stand each other and are unable to live peacefully together, that's
when they decide on a divorce with mutual consent.

Unfortunately, even after attempting mediation and reconciliation and making several efforts,
the parties are unable to live together and hence file a divorce petition mutually.

Muslim Law procedure for Mutual Divorce

There are two methods to become divorced or terminate a marriage in an Islamic divorce
procedure based on mutual consent. The first is the "Khula" divorce, and the second is the
"Mubarat" divorce. In either case, the woman agrees to renounce her dower or a portion of
any other property. In a mutual consent divorce under Muslim law, the woman is required to
pay a share of the compensation for the dissolution of the marriage and separation.

Khula

The wife agrees to give the husband consideration regarding her separation from the marriage
union following this way of seeking divorce under a Muslim Law. One type of consideration
is leaving the husband from paying Mahr payments to the wife.

Mubarat

Both the wife and the husband are finding it difficult to live together and wish to be separated
as quick as possible, leading to dissolution of marriage, under this type of divorce under
Islamic law.

 Either the husband or the wife might make the offer.

 There must be acceptance of the divorce proposal by the other spouse.
 It cannot be reversed if the other partner accepts it.
 Prior to the divorce being approved, an iddat (waiting) period is required.

If we're talking about Sunnis, when a husband and wife choose mubarat, all of their mutual
rights and duties become meaningless and expire. Shias, on the other hand, want adequate
documentation. The Shias think that if the phrase mubarat is not followed by the word Talaq,
the divorce will be invalid.

Mubarat (mutual consent divorce) is irreversible in both the Shia and the Sunni sects. Other
criteria match with those in khula, and the woman must observe the time of iddat. In both
cases, a divorce is considered as an act of both spouses, and hence any form of court
involvement is not permitted.

What are the Christian Laws with relation to mutually consented divorce?

The Divorce Act, 1869, Section 10A, governs mutual consent divorce in the case of Christian
couples, in which it is stated that both parties can jointly apply in the District Court for
dissolution of marriage if they have continued to live separately for two years or more, have
been unable to live together, and have both decided for the dissolution of marriage.

Second, on the motion of both sides made not sooner than six months after the date of filing
of the application referred to in sub-section (1) and not later than 18 months after that date, if
the application is not withdrawn by both sides in the meantime, the Court shall, upon having
heard the parties and making relevant inquiry as it deems fit, determine that a marriage has
dissolved since the day it passes the decree stating so.

Provisions under Special Marriage Act, 1954

Section 28 of the Act, which deals largely with rules pertaining to obtaining a divorce by
mutual consent in respect of a marriage that has been solemnised and/or registered under the
Act, allows a divorce petition to be filed with the District Court by mutual consent.

The Act also includes provisions for alimony and maintenance awards, both permanently and
throughout the course of the proceedings, which couples seeking a divorce by mutual consent
should be aware of. In situations of mutual consent divorce, the parties may agree on alimony
or maintenance payment conditions, which can then be included in the pleadings before the
court. However, Care must be made to incorporate the appropriate clauses in the pleadings to
avoid future misunderstandings or litigation.

Conclusion

Choosing to get divorce by mutual consent avoids needless squabbles and saves a significant
amount of time and money. Mutual consent divorce is one of the best-provided alternatives,
considering the increasing number of divorce applications. It is the fastest type of divorce,
saving time, money, and even mental anguish. Not only that, but the parties have complete
control over sensitive topics like child custody, support, and any other significant problems.