How to File a Petiton for Divorce by Mutual Consent

March 5, 2020

It is very important for the Applicant to know under which Act he/she is applying to the Court.

If you are married under your personal law you have to apply under your personal law, however if you are married under your personal law, but registered under the Special Marriage Act, you have to apply under the Special Marriage Act.

You have to affix a court fee of Rs.100/-

At the time of filing the Petition, the Petitioners needs to annexe to their Joint  Petition:

a)      Original marriage certificate, (if your marriage is not registered, then you have to file an Affidavit of marriage).

b)      Wedding photo showing clearly faces of both the spouses.

c)      Marriage invitation card.

d)      Passport size photo of the both the parties.

e)      Affidavit of Marriage.

f)       Copies of birth certificates of children if any.

The Petitioners have  to give his/her  full name, age, address, occupation – whether service or business or unemployed or housewife and state whether he is a citizen of India.

The Petitioner has to state as to how the Court has jurisdiction to try and entertain and dispose of the Petition, whether the marriage has taken place within the jurisdiction of this Court or the parties last resided together as husband or wife within the jurisdiction of this Court.

The Petitioner also has to make averments in the Petition as to whether any other cases are pending in any other courts between the same parties, as well as make an averment that there is no collusion between the two parties.

The Petitioners have to state the date and place of marriage. The most important averment in a Joint Petition is that they   have been living separately for a period of one year before the filing of the petition.

Because of the acute accommodation problem in Mumbai it is possible for the parties to continue to live in the same house, under the same roof but you have to very clearly state that both the parties are occupying separate bedrooms and there is no matrimonial relations between the two of them.

Whatever the terms of maintenance, may it be lump sum or monthly, custody of children, visiting rights, sharing of holidays can be put in the Consent Terms which can be filed at the time of filing the Petition.

The Petitioners have to make an averment that there are serious differences between them and they have tried to adjust with each other however are unable to do so and hence have decided to end their marriage. The prayers will also repeat their relief of Divorce under the particular section of the law under which they have married, and in terms of the Consent Terms which they have annexed to their Petition.

After filing the Petition along with copies of the same in the Court’s office, the Petitioners are given a date for removing the objections if any. After the objections are removed the Petition is numbered and then it is allotted to a particular court and a date is given for verification.

On the date of Verification the Parties are sent to the Marriage Counsellors who are officers of the Court. It is mandatory for the Parties to meet the Counsellor in his private Chamber which is attached to each Court. It is the duty of the Marriage Counsellor to see whether the marriage can be saved.

If both the parties have made up their minds to move ahead with the divorce and there is no chance of patching up the Counsellor gives her Report and the Court gives a date beyond six months for the final Divorce. Waiting for six months is mandatory. This period is given for the parties to think whether they want to proceed ahead with the Divorce.

After six months they can proceed with the Divorce or ask for more time to think. However there is a time limit of one year after the period of six months is over. Once you have decided to go ahead with your Divorce both the parties have to make an Affidavit of Evidence stating therein that you wish to proceed with the Divorce and have not withdrawn your consent.

After the divorce is pronounced in Court by the Judge you have to apply for the certified copy of the Judgement and Decree which will be furnished to the parties after a short period.

This article has been written by Ketaki Jayakar, Advocate.

Tags: Be Legally Aware

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