Mutual Consent Divorce – Fair or unfair ?

Introduction

Divorce by mutual consent is a legal process of separation after marriage, when both the parties (husband and wife) wants to separate with their own will and terminate the discharge of marital obligations towards each other.

Minimum Conditions to be fulfilled for obtaining divorce by mutual consent.

Discussing the divorce by mutual consent at length,  the minimum requirements that should be followed for obtaining a divorce by mutual consent are :-

1. The petition must be presented to the court jointly by both the parties containing the agreement between the parties in respect of the following :-

1. Child Custody – Which partner will get the child custody after divorce.
   1. Alimony/ Maintenance – The final arrangement of exchange of monetary benefits between the parties that can be of recurring nature or a one time payment in lumpsum or payable in installments.
   1. Settlement of Property and Assets – Settling the ownership rights of property and asset between the parties(Husband and wife).

• The court hearing after filing the petition should also be attended by both the parties.
• The husband and wife must have been living separately for at least 1 year from each other.
• All the possibilities of settlement/ conciliation and resolution of differences have been exhausted and parties are unable to live together.
• The parties should be acting out of their own free will and consent which is free from any kind of coercion have decided to get the divorce by mutual consent.
  
  

Criticism of Divorce by mutual consent

1. The mutual consent divorce was incorporated in the legislature for the immediate relief to a married couple among whom the matrimonial obligations towards each other are dead and there is no point in dragging the carcass of a dead marriage but now it has assumed the nature of the most prominent method of divorce in India which is fundamentally wrong. This has by passed the legislative intent for the sake of convenience and satisfaction of inflated ego of litigants.
2. The repercussions of the same would not be felt at the present but will surely set a wrong example for the present generations who would be encouraged to opt for the “swift divorce”.
3. The Courts are under the belief that this kind of divorce is being taken by the parties as a matter of right and the litigants are under the belief that the divorce is granted by the Court after duly examining all the facets of a case but in reality the couple agree on certain set of conditions among themselves and approach the Court and simply convey their wish to the judiciary.
4. The judiciary is now merely a lip service for such litigants and the merits of the case are not examined properly and decree of divorce by mutual consent is passed in a mechanical manner.
5. The main purpose for which Courts are set up is delivery of justice and balancing of rights of the parties who have brought a dispute before it. This can be done by hearing the arguments of the parties, examining the evidences produced by them in support of their respective arguments and then delivering a decision by keeping in mind the welfare of the disadvantageous litigant among the two but this does not happen in a proceeding of divorce.
6. The unsaid and unwritten basic presumption of the Court in mutual divorce cases is the presumption of equality between the parties and believing that parties both stand on the same footing and ignoring the inherent bias. The Court do not ponder and examine the need to put the disadvantageous at the same pedestal as the advantageous but assumes that parties have taken the decision after knowing what is best for them and ignoring the fact that abuse of dominant position is the founding stone of the such a “settlement”.
7. While deciphering the consent in furtherance of mutual consent divorce it is very essential to go behind the circumstances in which consent has obtained in a mutual consent divorce. A consent obtained without coercion, undue influence, misrepresentation and fraud appears to be free on the fore front but it may not be actually the case. The circumstances are not being looked after by the Courts.
8. The consent ignores the fundamental disparities in the socio economic background of a party , the lack of financial autonomy to a person, the lack of exposure in terms of education and worldly affairs do  not make up for consent .

Suggestions

1. The task to convene the divorce proceedings through mutual consent should be delegated to Divorce Tribunals set up specifically for this purpose. If the mutual divorces are to be entertained in the same manner as of now, then the specialized inputs from Family Courts are not helping the cause.
2. The amendments in the Family Court Act and the all legislative changes in various laws that prescribe for divorce  by mutual consent is the need of the hour in order to secure justice that in enshrined in the preamble of Constitution  and stop discrimination which is  deep rooted in the Article 14-18 of the Constitution of India.
3. For keeping a check on the mutual consent divorces it must be substantiated by cogent evidences that the parties have actually attempted settlement and have exhausted all possible means of settlement.
4. The distribution of assets among the spouses who are desirous of taking divorce through mutual consent should be equal rather than in accordance with the terms as agreed by the parties amongst themselves.
5. Heavy costs should be imposed on a party if they fail to prove urgency in their application for waiving off the cooling off period in mutual divorce so as to discourage the parties to file the same.

Conclusion

The divorce through mutual consent ignores the inherent bias and does not recognize that there is an one advantageous and other disadvantageous among the two spouses and Courts do not judicially examine the veracity of the whole procedure.

A mere judicial backing is provided to the wishes of parties deemed to be fair and equitable by them that has been arrived through consistent negotiations between them and is sometimes based on deceit or fear or compromise.

Hence, the divorce by mutual consent more often than not violates the sound legal principles of justice, equity and good conscience.

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