Divorce by Mutual Consent

With the implementation of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the Bharatiya Nyaya Sanhita (BNS), 2023, the legal landscape for families has evolved. 

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OVERVIEW

With the implementation of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the Bharatiya Nyaya Sanhita (BNS), 2023, the legal landscape for families has evolved. However, a distinction must be made between criminal/protective procedures (BNSS) and civil divorce procedures (CPC).

1. The Substantive Law (The "Why")

The right to a mutual consent divorce is still governed by personal laws:

  • Section 13B, Hindu Marriage Act (1955): For Hindus, Sikhs, Jains, and Buddhists.
  • Section 28, Special Marriage Act (1954): For civil/inter-faith marriages.
  • Requirement: Spouses must have lived separately for at least one year and mutually agreed that the marriage cannot be sustained.

2. The Procedural Shift (The "How")

While the Code of Civil Procedure (CPC) remains the primary engine for divorce suits, the "spirit" of the BNSS and BNS has modernized the process in Family Courts:

  • Section 144 of BNSS (Maintenance): This replaces the famous Section 125 of the CrPC. In a mutual divorce, parties often use this section to formalize their agreement on maintenance for the wife, children, or dependent parents.
  • Digital Integration: Mirroring the BNSS's push for a "Digital India," Family Courts now increasingly allow Electronic Filing and Virtual Appearances (via video conferencing) for recording the "First" and "Second" motions, especially if one spouse is residing abroad.
  • Evidence Act (BSA) 2023: The new Bharatiya Sakshya Adhiniyam (BSA) simplifies the admission of digital evidence (like WhatsApp chats or emails) to prove separation or settlement terms.

3. The Two-Motion Process

The procedure follows a structured timeline to ensure the decision is not made in haste.

Stage

Description

Timeline

First Motion

Joint petition filed; statements recorded by the Judge.

Day 1

Cooling-off Period

A mandatory period to explore reconciliation.

6 Months*

Second Motion

Final confirmation of the intent to divorce.

6–18 Months

Final Decree

The court dissolves the marriage legally.

Post-Second Motion

*The 6-month wait can be waived by the court in cases of extreme hardship (Amardeep Singh v. Harveen Kaur).

   

4. Key Improvements in the New Era

  • Zero Tolerance for Delay: The new Sanhitas emphasize "Justice with Speed." Courts are now more inclined to use technology to skip unnecessary physical hearings.
  • Simplified Maintenance: Under Section 144 BNSS, the application for maintenance is streamlined to ensure dependents are not left destitute during or after the divorce process.
  • Privacy: Mutual consent remains the most private method, as it avoids the "Cruelty" or "Adultery" allegations required in contested cases under the BNS.

Summary of Benefits

  • Speed: Avoids years of litigation.
  • Economy: Significantly lower legal fees compared to contested divorces.
  • Amicability: Better for child custody arrangements and emotional well-being.

Correction Note: Always remember that while you might use BNSS Section 144 for maintenance, the divorce petition itself is filed under the Hindu Marriage Act and follows the CPC procedure

 

Steps involved in a RERA complaint
Required Documents
    • Address proof of husband
    • Address proof of wife
    • Marriage certificate of the spouse
    • Four passport-size photographs of the marriage of both the husband and wife
    • Evidence proves spouses are living separately for more than a year.
    • Evidence relating to the failed attempts of reconciliation. 
    • Calculate Income tax statements for the last 2-3 years
    • Details of the profession and present remuneration
    • Information relating to family background
    • Details of properties and other assets owned by the petitioner
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