• Mutual consent divorce

Myself and my wife has gone for Mutal Consent divorce, we have filed up for the petetion
1) If i dont agree in front of court will she be able to get divorce?
2) If the court doesnt give divorce what option she has ?
3 I have demanded the child custody, my daughter is 7 years old, will i get the custody
Asked 4 years ago in Family Law
Religion: Hindu

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14 Answers

1. No in mutual consent court record consent of both the parties.

2.She has to go for a contested divorce under section 13 on grounds mentioned there under.

3.in mutual consent you and your wife decided for alimony and custody if she agree you will get it.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. No, you can still change your decision.

2. If the Court denies to grant mutual divorce because you are not ready for it, she has no remedy.

3. Since you and your wife are getting divorced through mutual consent divorce, the question as to custody of the child has to be decided jointly/

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

1. No

2. To file a contested petition of divorce.

3. If it is a mutual consent divorce then you will get the custody or not depends upon the mutual consent of the parties.

If later the case ofr custody is child then for the court at the time of deciding the custody welfare of child is of paramount importance.


Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. At the time of final motion if either of you retract your consent for divorce, the mutual divorce can not happen.

2. Then the case for mutual divorce will be dismissed and then either of you can file a contested suit for divorce.

3. well, getting back custody of the child from another parent is very difficult unless you mage to prove that welfare and safety of the child gravely at danger.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

If you withdraw your consent wife would not get divorce by mutual consent and petition would be dismissed

2) wife has to file fresh contested petition for divorce

3) you would not get sole custody of daughter

4) court would award you visitation rights

Ajay Sethi
Advocate, Mumbai
87901 Answers
6207 Consultations

5.0 on 5.0

1) If you deny in from of court , judge won't pass decree of divorce.

2) She may file divorce case in the court against you.

3) You can claim for child custody that should prove in the court that you are best care taker of your child than her mother. but in most of the case for girl child her mother is best care taker than father, when your daughter became 18 years old at that time she can take decision with whom she want to live with it.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

hi sir..

as per your questions i can suggest you that.!

1. as you filed mutual consent divorce the day you appear before the court the case will be put for mediation centre and when you attend the mediation process there you can say whatever your demands, then you and wife agrees for the same it can be ended upon the same thing.

2. if your wife does not agree because it's girl child or boy child the court will not grant the custody as per the Hon'ble supreme court order and only in such cases if mother is unable to look after the child, then the court can grant custody of the child or else you can demand for visitation rights and to take child for vacation, trips as per your convenience.

for further details do call me

Koushalya Pattan
Advocate, Bangalore
174 Answers

Not rated

Dear sir,

The following information may kindly be read and it is useful to you.


What is divorce by mutual consent?

Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court. Mutual consent means that both the parties agree for peaceful separation.

Mutual Consent Divorce is a simple way of coming out of the marriage and dissolve it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses.

When can the divorce by mutual consent be filed?

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.

Where to file the divorce petition?

In the family court of the city / district where both the partners lived together for the last time, which was their matrimonial home.

Are there different laws of divorce for different religion in India?

There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.

How to file divorce petition by mutual consent? What happens in the court?

The divorce petition is in the form of affidavit, which is to be submitted to the family court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months.After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.

Can any one party withdraw the mutual consent petition after filing in the court? What will happen by that?

During this period of 6 months when the petition is pending in the court, any of the partner is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent.In such circumstances, the court grants no divorce degree.

What can the other partner do under such circumstances?

There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950.In such a situation divorce can be granted only on certain specified grounds like cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.

Can the spouse consent for remarriage without getting divorce from existing partner?

Remarriage without getting divorce is a punishable offence with seven years imprisonment.

If either of the spouses is not heard for a long time, should the divorce be applied?

If there is proof of the absence of spouse without any information to the other spouse about his whereabouts for a continuous seven years period, a petition should be filed in this regard in the court.

When the divorced persons can remarry?

Depending on the nature of decree, after the expiry of three months from the date of decree if no notice of appeal is received by the person remarrying from the other person.

What are the costs involved in getting divorce by mutual consent?

If you hire an advocate, it will be somewhere from Rs 25,000 to Rs 75,000.But if you get the documentation done by us and file on your own without a lawyer, the cost will be very very low. You will not have any problem in filing your petition with our guidance, and you will save a lot of money.

How much time does the whole process take from filing the mutual consent petition in the court till the passing of the decree (judgment) by the court?

It takes from six months to one year from the date of filing of the petition. It varies from case to case & place to place.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

During the period of six months i.e. before moving second motion,both parties have liberty to withdraw their consent for divorce.

If any spouse refused The divorce petition filed by mutual consent would be dismissed and she have option of filing fresh petition for divorce on grounds mentioned in Hindu marriage act .

Custody and divorce are two different things. You can always fight for your custodial rights without going for divorce.

Normally a minor child of below 7yrs. is kept with her mother's custody. In some exceptional cases father can apply for custody of such child before Ld. District Judge.

Mohammed Mujeeb
Advocate, Hyderabad
19029 Answers
32 Consultations

4.5 on 5.0


Contested divorce.

Visitation rights.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. If you withdraw your consent for the divorce on the day of the 2nd motion moved before the Court, the MCD petition jointly filed by both of you shall be rejected by the Court.

2. If she fails to get MCD decree, the she will have no option other tan filing a divorce suit on acceptable ground which can be contested by you.

3. The Court will consider her welfare as the prime consideration for awarding the child custody order. If you can satisfy the Court that you should have your daughter's custody for her welfare, then you shall get the favourable order, otherwise not.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

In case you do not agree for the mutual consent divorce it will be a contested divorce between both of you and the court will refer to both of you to mediation and reconciliation process and at the same time we can find his child custody petition as well to decide by the court please note that as per the law a child of more than 5 year age goes to the custody of the father and mother has to show some extraordinary Grounds to take the custody and the child has to testify if he or she wants to go to the mother for the custody

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1. No court can dissolve a marriage through mutual consent unless both spouses appear personally to reiterate their consent to end the marriage.

2. On the dismissal of mutual consent divorce petition either spouse is free to file a petition for contested divorce on the grounds available to him/her under the law.

3. In a dispute of child custody the only consideration for the court is the welfare of child whose custody has been sought. The parent who can prove himself/herself to be more competent than the other to secure and promote the welfare of child is qualified to get the custody, with visitation rights to the other parent. After the child attains the age of 5 years his mother no longer remains his natural guardian.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

1. No, the court will dismiss the petition.

2. She may file a contested divorce on the grounds of cruelty and this also maybe included in her pleadings for cruelty.

3. It depends on how you advance your arguments before court and convince court of your requirement and the genuineness.

T Kalaiselvan
Advocate, Vellore
78059 Answers
1543 Consultations

5.0 on 5.0

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