My answers are as following followed procedure for mutual divorce. Please call me in case doubts.
Q1. What kind of stamp paper with article number and value is required to sign a memorandum of compromise/understanding/settlement for the above said purpose in Delhi.
If there is some other document please inform.
Ans: Everything must be through Family Court only and not outside the court. No stamp paper required but court papers required.
Q2. I already bought Rs 100 non judicial stamp paper bearing article no. 58 stating memorandum of settlement (as there was no other option under memorandum) 2 qty one for her and one for me. If this is incorrect please mention the correct document and qty and value required.
Ans: As I said you have to file mutual divorce case in Court only through advocate.
Q3. What are the chances of her later on asking for property or any monetary gain after signing this document mentioned above? Please inform the correct procedure.
Ans: Everything must be mentioned in the petition and it will be endorsed by Court which is binding upon you both.
Q4. May parents be witness when we sign the above documents?
Ans: No, not necessary but your presence before Court is necessary.
Q5. Kindly guide me with a format for the above procedure.
Ans. You approach the local Advocate after reading the following. You should not be so innocent. It is very difficult to lead future life.
1. India is a multi-religion country Divorce my mutual consent carries different process for different religions in India, Hindus are governed under the Hindu Marriage Act,1955, Christians are governed under Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872, Parsis are governed by The Parsi Marriage & Divorce Act-1936, and Muslims under Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986, and finally for NRIs, or Foreign nationals who are married with Indians fall under a secular law called Special Marriage Act, 1954.
2. Governing rules for couples to seek divorce by mutual consent are as follows
a. Both Husband and Wife have mutually agreed to dissolve the marriage under no influence / threat
b. Filing the petition for mutual consent should be done in the jurisdiction where husband and wife live ( document required to prove the jurisdiction is address proof)
c. Both Husband and Wife are living separately since one year (i.e.. staying in different locations and not under one roof in different rooms, address proof is the document required)
d. After filing the petition both husband and wife has to wait for 6 months (Cooling Period) to complete the procedure post which they will be declared divorced. And in a recent development in this clause a married couple may not need to wait six months for a separation order in the case of mutual consent and the marriage can be legally terminated in just a week as the Supreme Court on Tuesday 12th September 2017 held that the "cooling off" period in not mandatory and can be waived off.
e. After the divorce decree is granted, they need to go to the marriage sub-register office and submit a form along with the divorce decree to cancel the marriage certificate
3. Divorce is filed in the family court of the city; in Bangalore family court is located at H.Siddaiah Road, Sudhama Nagar, Bengaluru, Karnataka 560027. The court operates from 10:00 AM in the morning to 6:00 PM in the evening, Monday to Saturday.
4. The couple who plan to seek divorce meet a lawyer and share their concerns, post which the lawyer drafts a petition, collects signatures on a few affidavits and applications and depending on a date that suits everyone they decide to file the petition at the family court. Documents required to complete the filing are
a. Divorce Petition for dissolution of marriage under sections and acts as per the religion
b. Memorandum of Understanding (in case of child custody, property and assets etc…)
c. Verifying Affidavits of both Husband and Wife
d. Joint Affidavit of both Husband and Wife
e. Application under Section 13 Family Courts Act
f. Address Proof of both Husband and Wife
g. Identify Proof of both Husband and Wife
h. Marriage Invitation Card
i. Marriage Photograph
j. Marriage Certificate
5. On the day of filing, both Husband and Wife meet the lawyer at the family court, the lawyer verifies all the documents, prints them on a green colour legal paper of size 8.5” x 14”and aligns them as per the requirements / process outlined by the family court, collects signatures from both husband and wife in the presence of an authorized notary, affixes the stamps and pays the stamp duty (fees) as prescribed by the court depending on the act and section under which the petition is being filed. This process typically takes not more than a couple of hours and the filing is completed.
6. The Filing department forwards the case file to the court after verification, If in case there is an error, or any document not as per the prescribed rules, or any other point mentioned does not meet the requirements outlined as per the act and sections the couple are governed, the judge raises an objection.
7. The Lawyer is notified about the objections and the same needs to be rectified, typically 15 days to 1 month duration is granted by the court to address the objections. The lawyer then reconvenes with the parties (husband and wife) and collects all relevant information / additional documents and submits to the court. In case the objections are not addressed, the case gets dismissed and the procedure needs to be followed all over again.
8. If there is no error and the filing is done following the correct procedure the court accept the petition, records the statements of both parties and date for next herring is given, this is typically 6 months from the date of filing the petition. There have been some cases where a special prayer is done by the lawyer and parties to wave off the cooling period of 6 months, but this practice is not entertained in all cases. The Supreme Court put an end to this practice in the year 2009, but still in some cases the High Court has granted relief form the waiting period.
9. During this waiting period / cooling period of 6 months either both Husband and Wife or any one of the party can withdraw the petition, however the courts comedown heavily and wran parties who are withdrawing the consent after filing if the intention is to extort money or draw vengeance, more often than not such instances don’t occur and the process gets completed. The point I am highlighting here is the opportunity.
10. After 6 months both husband and wife have to present themselves before the court to confirm the mutual consent filed earlier and in this cooling off period as well there has been no reconciliation, in some cases if there is an inclination of saving the marriage counselling can be recommended at the mediation center of the same premises in Bangalore, if nothing works out, the final order is passed and both are declared divorced.
11. Once the divorce decree is granted the final step is to visit the Marriage Sub Registrar office and get the marriage registration cancelled. This completes the process.
A very important point to remember is during this 6 months waiting period it’s advisable for the (Husband) boy or (Wife) girl not to entertain any second marriage option or engage in a courtship, this is punishable offence and will entertain complications in the proceedings.