If you are stuck in such a situation, here is what to do. 🧩

Mr. Rajeev Sharma, a resident of Eldoria, recently received a divorce petition from his wife, Ms. Sanjana Verma, who resides in Celestia. The petition alleged grounds of mental cruelty. Interestingly, Rajeev and Sanjana have been living in separate cities since their marriage, maintaining a cordial relationship. Upon discussing the matter, Sanjana expressed her willingness to convert the contested divorce into a mutual consent divorce.

Rajeev is now scheduled to appear before the District Family Court of Eldoria on the 28th of next month for the initial hearing of the contested petition. He is seeking guidance on how to proceed with the mutual divorce process given the existing court summons.

Advice in such cases ⚖️

When faced with a situation where a contested divorce petition has been filed, but both parties subsequently agree to a mutual consent divorce, the following steps are generally advised:

• Attend the Scheduled Court Date: It is crucial for Mr. Rajeev Sharma to appear in court on the 28th of next month as summoned. Failing to appear could lead to an ex-parte order against him.
• Inform the Court of Mutual Agreement: At the first hearing, both parties (or their respective legal counsels) should inform the court that they have reached an agreement for a divorce by mutual consent. They can request the court’s permission to withdraw the original contested petition and file a fresh joint petition under Section 13B of the Hindu Marriage Act, 1955.
• Drafting the Mutual Consent Petition: A joint petition for divorce by mutual consent must be prepared. This petition will outline the terms of the divorce, including details regarding alimony, maintenance (if any), child custody (if applicable), and division of assets. It’s vital that both parties agree on all these terms before filing.
• First Motion Filing: Once the joint petition is ready, it is filed before the Family Court. Both parties will need to appear before the court to record their statements, confirming their mutual consent and the terms of the settlement. The court will then usually grant a cooling-off period.
• Cooling-Off Period: As per Section 13B(2) of the Hindu Marriage Act, 1955, a mandatory cooling-off period of six months to eighteen months is prescribed after the first motion. This period is intended to give the couple time to reconsider their decision. However, in certain exceptional circumstances, the Supreme Court has allowed for waiver of this period.
• Second Motion Filing: After the cooling-off period (or its waiver, if granted), both parties must appear again before the court for the second motion. They will reiterate their consent to the divorce. If the court is satisfied that the consent is free and not obtained by force, fraud, or undue influence, it will pass a decree of divorce.
• Legal Counsel: It is highly recommended to engage an experienced family law attorney to navigate this process efficiently and ensure all legal formalities are correctly fulfilled.

Applicable Sections of Law 📖

• Hindu Marriage Act, 1955 (HMA):
  • Section 13: Deals with grounds for divorce, including cruelty, desertion, adultery, etc., typically for contested divorces.
  • Section 13B: Specifically provides for divorce by mutual consent. It outlines the two-motion process and the cooling-off period.
• Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS): It is important to note that the BNS and BNSS primarily deal with criminal offenses and criminal procedure, respectively, replacing the Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC). A divorce petition, even one alleging mental cruelty, is fundamentally a civil proceeding under personal laws like the HMA. Police involvement under BNS/BNSS would only arise if a separate criminal complaint (e.g., for domestic violence, dowry harassment, or false criminal accusations) is filed, which is distinct from the civil divorce petition itself.

If you are the complainant 🗣️

In a divorce petition, the complainant (or petitioner) is the party who initiates the legal proceedings. Their role involves:

• Clearly stating the grounds for divorce in the petition (e.g., cruelty, desertion).
• Providing supporting evidence and documents to substantiate their claims.
• Attending all court hearings and cooperating with the judicial process.
• Being prepared to negotiate terms of settlement, if a mutual resolution is sought.

If you are the victim 🛡️

If you are the respondent in a divorce petition and feel you are a victim of false accusations, even if you eventually agree to a mutual divorce, consider the following:

• Documentation: Keep all relevant communication, emails, messages, and other documents that can disprove the false allegations or demonstrate the true nature of the relationship.
• Negotiation during Mutual Consent: Ensure that the terms of the mutual consent divorce do not implicitly admit guilt regarding the false allegations. The mutual consent petition should focus on the irreconcilable differences and mutual decision to part ways, rather than acknowledging the initial accusations.
• Protection against Future Claims: The mutual consent divorce decree, if properly drafted, should clearly state that all past claims and allegations between the parties are settled and no further claims will be entertained.
• Legal Recourse for Malicious Prosecution: While rare and difficult to prove, if false criminal complaints were filed against you (which is not the case here, as it’s a civil divorce petition), you might have recourse under BNS for malicious prosecution, but this is distinct from the divorce proceedings.

How the police behave in such cases 🚓

In cases of civil divorce petitions, including those alleging mental cruelty, the police generally do not have a direct role. Their involvement is typically limited to:

• Criminal Complaints: If, alongside the divorce petition, a separate criminal complaint is filed (e.g., for domestic violence under BNS, dowry harassment, or other cognizable offenses), then the police will investigate as per the procedures laid down in the BNSS.
• Summons/Notices: In rare instances, if court orders require their assistance for serving summons or ensuring attendance, they might be involved.
• False Criminal Cases: If a spouse files a false criminal case (e.g., false domestic violence complaint) against the other, the police are obligated to register and investigate it. However, if the allegations are proven false, the accused party may have legal remedies against the complainant.

For a purely civil divorce matter, the proceedings are handled by the Family Courts, and police intervention is not standard.

FAQs people normally have 🤔

• Can a contested divorce be converted to mutual consent divorce? Yes, absolutely. Many couples initially file contested petitions but later resolve their differences and opt for mutual consent.
• Is the cooling-off period mandatory for mutual divorce? While Section 13B(2) of the HMA prescribes a 6 to 18-month cooling-off period, the Supreme Court, in certain judgments, has allowed for its waiver in cases of extreme hardship or where reconciliation is impossible and the parties have genuinely lived separately for a long time.
• Do both parties need to be present at every hearing? For a mutual consent divorce, both parties must be present at the time of filing the first motion and the second motion to record their statements. They may also need to be present for other crucial hearings or for mediation.
• What if one party backs out of mutual consent? If one party withdraws consent before the final decree, the mutual consent petition fails. The other party would then have to pursue a contested divorce.
• How are alimony and child custody decided in mutual consent divorce? These terms are decided through mutual agreement between the parties and are clearly laid out in the joint petition and settlement agreement. The court usually approves these terms if they are fair and in the best interest of any children involved.

What evidence is required? 📝

The evidence required depends on whether the divorce is contested or by mutual consent:

• For a Contested Divorce (e.g., on grounds of cruelty):
  • Specific instances and dates of alleged cruel acts.
  • Witness testimonies (if any).
  • Communication records (emails, messages, call recordings) demonstrating the cruelty.
  • Medical records, if physical or mental health was affected.
  • Any other documentary evidence supporting the claims.
• For a Mutual Consent Divorce:
  • A joint petition signed by both parties.
  • Affidavits from both parties affirming their mutual consent and the terms of settlement.
  • Marriage certificate.
  • Proof of identity and address for both parties.
  • Any settlement agreement outlining the terms regarding assets, alimony, and child custody.
  • Proof that they have been living separately for at least one year immediately preceding the presentation of the petition (as per Section 13B of HMA).

How long will the investigation take? ⏳

In the context of a divorce, it’s not an “investigation” but a “judicial process.” The duration varies significantly:

• Mutual Consent Divorce:
  • Typically takes 6 to 18 months, primarily due to the mandatory cooling-off period between the first and second motion.
  • If the cooling-off period is waived by the court (which is discretionary and depends on specific circumstances), the process can be expedited, potentially completing in a few months.
• Contested Divorce:
  • Can take significantly longer, often ranging from 2 to 5 years, or even more, depending on the complexity of the case, the number of issues involved (e.g., alimony, child custody), the volume of evidence, and the court’s docket.
  • The process involves filing of pleadings, evidence, cross-examination of witnesses, arguments, and then judgment.

Advocate Sudhir Rao, Supreme Court of India