Divorce helps a person to break free from a marital relationship. Marriage is not a contract; it's an important societal institution. The law is interested in the protection of marriage; it does not allow it to be severed only by ordinary wear and tear and choice. To get a divorce one needs to prove specific grounds, for e.g., cruelty/adultery/desertion etc. which are also known as matrimonial offences. People get confused between mutual divorce and contested divorce ending up with gratuitous legal bills.
Mutual Consent Divorce:
A mutual consent divorce is a divorce whereby both the husband and wife mutually agrees to end the relationship and amicably decides the terms and conditions of the divorce. The reason why mutual consent divorce is also called an uncontested divorce is that the husband and wife files a joint divorce petition without the need to contest it before the court.
Parties desirous of Mutual Consent Divorce are always perplexed as to how to initiate the process, the role of court, terms, and conditions of mutual consent divorce, issues of maintenance and child custody, duration of mutual consent divorce, a place where Petition for mutual consent divorce can be filed and other allied questions.
The court grants a divorce only on proof of fault conducted by one party and the innocence of another party. The most common grounds for divorce are cruelty, adultery, desertion ( it means wilful abandonment done by one spouse to the other without the reasonable cause), etc. Sometimes the conversion of religion and renunciation of the world is also one of the divorce grounds.
As per the law, our legal system does not grant a divorce on the irretrievable breakdown of a marriage or irreconcilable differences. To get divorce one has to prove wrongdoing on the part of the other spouse. The legislature has taken note of this practical reality, and a bill of the same is pending in the Parliament, which would allow a spouse to seek divorce on the ground of inherent incompatibility leading to the breakdown of a relationship.
Ground For Divorce:
Under the Indian law, establishing a divorce ground is not necessary for filing a petition of Mutual Divorce, but for a petition of contested divorce valid ground. There are various reasons for divorce in India which includes adultery, mental or physical cruelty, desertion, conversion of religion, a venereal disease of communicable form, renunciation of the world, mental illness, leprosy and if the spouse is not heard being alive for seven years, etc. The valid reason for divorce in India is mentioned in section 13 of the Hindu Marriage Act, 1955.
Maintenance/Alimony, Division Of Property And Child Custody:
In a Mutual Consent Divorce, the formalities relating to maintenance/alimony, division of property and child custody, are decided by the husband and wife. However, the issues about alimony/maintenance, division of property and child custody are contested like the divorce petition. In India, for the case of Contested divorce, the lawyers file a separate request to deal with the issues.
Reconciliation of the parties:
There is no concept of a reconciliation between the divorcing couple in a contested divorce. However, there is a period of 6 months in a divorce of mutual consent; it helps to give a chance to the couple some time to rethink on their decision. Under the new divorce law in India, the cooling period may be waived off by the court if it thinks that reconciliation is impossible and a cooling period will only increase their suffering.
It is observed that the Mutual Consent divorce is the easiest way to get separated, in this type of divorce both parties work out their terms and conditions on which both the parties agree to part ways- file petition in the court, which is finalised in 6 months.
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