• Mutual consent divorce with 2 kids

I want a divorce from my husband.. From starting my husband was violent.. There was a lot of domestic violence but I tried to manage and did everything to save this marriage. The time changed he stop physical but mental violence and is still there. I have 2 daughters one with the age of 3.5 yrs and another of 11 months. It's a marriage of 10yrs . It's a love marriage with family consent but I m still not getting any help from them. I m educated but I am not able to earn due to the responsibility of my daughters. About the custody of my daughters if I get the custody then I need monthly amount but if my husband keeps the daughter then I don't need anything from him.
Asked 6 months ago in Family Law
Religion: Hindu

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26 Answers

See in mutual divorce you are your husband can decide the maintenance and custody mutually , you both can agree to some terms and the agreement can be prepared abs submitted before the court.

Also if donot agree for mutual divorce file a complaint before police station and a contested divorce.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
111 Consultations

5.0 on 5.0


You are suggested to file the case of domestic violence, divorce and child custody against your husband with all the supportive averments, facts etc. and ask for the maintenance for yourself, kids and other reliefs as applicable in your case. You may consult the District legal services authority for have an advocate free of cost and proceed as per legal advice.  

Ganesh Singh
Advocate, New Delhi
6512 Answers
13 Consultations

4.5 on 5.0

File for divorce on grounds of mental cruelty 


2) seek sole custody of your daughters


3) seek interim maintenance and alimony from husband 


4) you can also file Dv case seek alternative accommodation, maintenance and protection order 

Ajay Sethi
Advocate, Mumbai
79294 Answers
4742 Consultations

5.0 on 5.0

You can decide about filing mutual consent divorce if he agrees for your proposal to dissolve the marriage by a decree of divorce through mutual consent.

The child custody matter also can be decide in the mutually agreed conditions before filing the divorce petition.

If he is not agreeing for mutual consent divorce then you may file a contested divorce case on the grounds of cruelty.

The child custody can be decided after the divorce case is decided and until then you can seek monthly maintenance amount from his for you and for your children.



T Kalaiselvan
Advocate, Vellore
69328 Answers
929 Consultations

5.0 on 5.0

Even if custody rest with you, you can claim maintainance for you and child. 

Can and actually earning is different thing, your education status no bar to claim maintainance. And if you take MCD with the condition, no maintainance. Even than you can claim maitianance.

If you want to give custody to husband, still you can claim maintainance for you.

Yogendra Singh Rajawat
Advocate, Jaipur
21402 Answers
31 Consultations

4.4 on 5.0

- Your written submissions are showing that you are subjected to cruelty from your husband 

- Hence, you should know , that legally you are having following right  :-

 1.As per law, A wife has the right to claim decent living standards and basic comforts of life from her husband. Hence for claiming the maintenance, you can file a petition under section 125 CrPc.

- Your husband is under legal obligation to provide the same to you at any cost, even he is working or not. 

2.Law entitles wives a basic right to reside in the matrimonial/ home, whether the house owned by her husband or his parents, a rented property or officially provided to him. 

- Hence, for claiming your residential right, medical expenses etc, and also for teaching a lesson to your husband, who subjected you torture & harassment, you can file a petition under the provisions of Domestic Violence Act.

3.As per the Supreme Court, A wife has complete ownership rights over all her Streedhan, the gifts and money given to her before and after marriage. The denial of Streedhan to the wife makes the husband and in-laws liable for criminal charges. 

- And further, if the husband subjected a woman to cruelty for the dowry demand, then they can be booked under Section 498-A.

- You can lodge a written complaint against your husband, in the Women cell/Mahila Police, after mentioning all the details of torture & harassment. 

- The women cell firstly will try to reconcile the dispute , otherwise, they will lodge an FIR against all the person, who subjected you cruelty. 

- Further, as per law, even a mother who is a housewife can gain custody of the child and the father will be asked to provide child support.

- The mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old will be considered.

- Hence, being mother of baby children , you are the only & fit to get full custody legally. 

- If you dont want live with your husband, then take his consent for mutual divorce on the condition of custody of child. 


Good luck and dont forget to rating Positively. 

Mohammed Shahzad
Advocate, Delhi
5531 Answers
51 Consultations

5.0 on 5.0

If you go for mutual consent divorce than a fixed amount by given by your husband at a time. If along with girls custody or without girl custody needs to fix for amount.


For that you need to leave separately atleast 6 months from him or matrimonial home.

Ganesh Kadam
Advocate, Pune
11668 Answers
109 Consultations

4.9 on 5.0

Dear querist, 

1. If your husband is ready for a mutual divorce, the you can file the same on agreed terms of maintenance and alimony. In case if he is not willing then the divorce can be on grounds of mental cruelty and domestic/physical abuse under section 13(1) of HMA, 1955.

2) You can seek sole custody of your daughters by filing an application under section 6 of the Hinsu minority and guardianship act. If you will get the custody, you will be getting the monthly maintenance. 


3) You can separately file an application and seek interim maintenance and alimony from husband under section 125 of Crpc.(recommended)


4) You can also file Domestic violence case seek alternative accommodation, maintenance and protection order.( recommended)


You can contact me for consultation, in case you require my assistance. 





Yuganshu Sharma
Advocate, New Delhi
386 Answers
1 Consultation

5.0 on 5.0

Hi,for monthly maintenance you have to file a petition under section 125 crpc ..Under said petition a wife can claim maintenance upto 1/3th salary of her husband and even more if she has child ..Simultaneously,a divorce petition can also be filed on the grounds of mental and physical torture 

Hemant Chaudhary
Advocate, Gurgaon
4595 Answers
41 Consultations

4.9 on 5.0

Dear client you may proceed for getting mutual diverse under Hindu marriage act.

If your husband gets the custody of your daughters then he does not have to pay maintenance for your daughters. Otherwise you make clamp maintenance for your daughters and for yourself if you don't it get married after divorce.

Jaswant Singh
Advocate, Gurugram
877 Answers
2 Consultations

4.8 on 5.0


  1. You can file for divorce on grounds of cruelty, unilaterally, if he does not consent for divorce by mutual consent. In a divorce by mutual consent, the custody of childrenis decided before the filing of the petition.
  2. Generally, the custody is granted to the mother, especially if the children are under 5 years of age. In addition as the children are girls, they would require the care of the mother constantly.
  3. As you are unable to start working owing to child care, you too are eligible for maintenance until you are able to find work/ able to start working. In case of a divorce by mutual consent, a sum can be decided as a one time alimony for you and the maintenance contribution towards upbringing of the children. 

S J Mathew
Advocate, Mumbai
3033 Answers
110 Consultations

5.0 on 5.0

Hello Madam, 

You can file divorce petition on the ground of Cruelty. Definitely you will get divorce if u prove the domestic violence. You can also take a necessary action against your husband on domestic violence act for his act of physical harassment. 

Apart from this, child custody will not given to father. Moreover, if a child is a daughter , the court will not give child custody to husband considering the female child’s future. But the father of the children can get visitation right to meet the children in a public places on monthly once or twice. To get this visitation right, he has to pay maintenance to maintain the children. 

When you do not have source of income to maintain you and your daughters, you can also file maintenance case against your husband to claim 1/2 share of his income to maintain you and your children. If he failed to pay the amount to maintain the daughters, you can refuse his visitation right to meet the daughters. 

Selva Perumal
Advocate, Chennai
314 Answers
36 Consultations

4.9 on 5.0

You can file domestic violence case along with the alimony application and custody application. The court will direct him to pay the maintenance for you and your children

Prashant Nayak
Advocate, Mumbai
22417 Answers
49 Consultations

4.4 on 5.0

The judicial system has a vested interest in protecting the institution of marriage. Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear.  Since society in countries like ours takes special interest in protecting it – In our country to get a divorce one needs to prove certain grounds for eg : cruelty/adultery/desertion etc.  known as matrimonial offences.


Humiliating of one spouse by another in presence of others does amount to cruelty. Matrimonial life is for homogeneity and companionship. A wife has the right to live her life with dignity and to have the same lifestyle that her husband’s and in-laws have. She also has the right to be free of mental and physical torture. A wife is entitled to claim decent living standards & basic comforts of life by her husband as per his living standards. Divorce should only be used as a last resort when you feel that marriage has broken down irretrievably and in spite of your best efforts there is no chance of survival of marriage.


If you decide to end the marriage life then file a divorce under the ground mental cruelty. Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access.


The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. The mother and father both have an equal right to the custody of a child. But who gets the custody of the child is a question that the court decides upon. Fathers in India has to face a terrible truth that a minor child custody will be undoubtedly awarded to mothers, unless proven that she has neglected her child. Most fathers don’t want to confront the issue, not realizing that they put themselves in more vulnerable state and at loss during divorce proceedings, especially while fighting for child custody and support.


A Hindu male is legally obligated to maintain his spouse. Maintenance includes provision for food, residence, clothing, education and medical attendance and treatment. In India, family courts can pass an interim order on maintenance to a spouse when she is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce. So, a lawsuit for divorce or judicial separation is not mandatory to apply for monthly maintenance.


So file a maintenance petition. The same time you can also file Domestic violence case seeking alternative accommodation, and protection from your husband .

Ajay N S
Advocate, Ernakulam
3624 Answers
71 Consultations

5.0 on 5.0

I am answering your case based on your facts of the case which is as follows:-

1) You may file divorce proceedings before Family Court based on grounds of violation of peace and harmony in house because of cruelty and violence caused to by your husband. 

2- You may file application for the custody of your children and Court may grant it in your favour. 

3- You may file application for alimony for self and children which the court would definitely grant in your favour. 

Pl proceed with due care and definitely you will succeed in your efforts to win the case in your favour before the Family Court.

All the Best.

Ramesh Pandey
Advocate, Mumbai
2538 Answers
8 Consultations

5.0 on 5.0

1. Mutual divorce is possible only if there is a positive agreement between spouses on all outstanding issues such as child custody and maintenance/permanent alimony.

2. If there is no such positive agreement then you may on your own accord file divorce petition on the ground of cruelty under Hindu Marriage Act.

3. Mother is the natural guardian of a child unless the child attains the age of 5 years. So when mother is the natural guardian of child the courts lean in favour of mother when it comes to custody unless mother is found to be unfit to secure the welfare of child.

4. You are free to claim maintenance for yourself and your children under DV Act, 2005 and also 125 Cr.P.C.

Ashish Davessar
Advocate, Jaipur
29956 Answers
864 Consultations

5.0 on 5.0

A mutual consent divorce is possible if both the parties agree to divorce each other based upon certain conditions mutually agreed to by the parties.

If he doesn't agree to the divorce then you have to file a divorce petition and contest it. You have to prove that he is violent. Maintenance application can be filed and you are entitled to maintenance.

Rahul Mishra
Advocate, Lucknow
11560 Answers
20 Consultations

5.0 on 5.0

This all depends on the consent  of you both that who will keep the childs.

First right is of mother on a female child 

If you keep the childs than settle for a one time lumpsum amount for your and your daughters future. 

If he keeps than you need not to think anything 

Rahul Jatain
Advocate, Rohtak
5364 Answers
4 Consultations

4.8 on 5.0

1. Let  you convince your spouse to agree for Mutual Consent Divorce. Better to opt Mutual consent divorce route and mutually the husband and wife can take decisions in the matter of child custody, finance, assets, maintenance or alimony, returning the jewellery given by  your parents and relatives etc.

 2.  In the joint petition to be filed by both husband and wife for dissolution of their marriage U/S. 13-B of the Hindu Marriage Act (Mutual consent divorce) , the custody of child, maintenance, finances, property matters, visitation rights will be mentioned.

3.  The reason can be mentioned as due to irreconcilable differences they have been living separately since one year, and their marriage has broken down irretrievably and efforts to bring about reconciliation have also failed.

4. The time for concluding mutual consent divorce will be 6 months and this cooling period of 6 months can also be waived off in certain cases.

Shashidhar S. Sastry
Advocate, Bangalore
3236 Answers
175 Consultations

5.0 on 5.0

Ans: You can get divorce after showing the requisite evidence in support of your case.

Custody is generally given to the mother unless the husband shows some fault in the mother.


Garima Anil Mehrotra
Advocate, Mumbai
444 Answers
1 Consultation

4.9 on 5.0

In mutual consent the parties should decide mutually that whom the custody is and what is the visitation rights of the other party who has no custody. these terms are to be mutually decided and no law regarding this prevails when the custody is decided by mutual consent.

Mohammed Mujeeb
Advocate, Hyderabad
18935 Answers
11 Consultations

4.5 on 5.0

if you want to terminate the matrimonial knot, then, try to settle the matter amicably with your husband involving elders/relatives/friends etc and go for Mutual Consent Divorce which will be decided in 6-18 months, and you both will be free to live life with your wish,

don't forget to draft an MOU before approaching Mutual Divorce, which is the most essential and important part of a Divorce case,

some basic points to keep in mind and put in writing through an MOU before filing the petition for mutual consent divorce are custody of kids, distribution of assets (movable/immovable), quash/withdraw of pending litigation if any, Maintenance (present/future), Alimony, mode and time of making the payment, streedhan, future litigation, etc.

if efforts for the MCD fails, you can file/claim:

498a complaint (for causing mental, emotional, physical and monetary abuse, etc)

Domestic Violence case (for causing mental, emotional, physical and monetary abuse, etc)

you have rights to claim residence, protection, compensation, maintenance for you & the kids, 


Suneel Moudgil
Advocate, Panipat
2330 Answers
3 Consultations

4.7 on 5.0

You can file for divorce on the ground of mental cruelty.

You can make an application seeking permanent custody of children, since they are less than 5 years, you get the custody.

You need to file application for interim maintenance for the children and yourself and also seek alimony from your Husband.

You can also file applications under Domestic Violence Act viz., protection orders, residence orders, monetary relief, custody orders, compensation orders & seek exparte interim orders against your husband and his representatives from disturbing you.

S Srinivasa Prasad
Advocate, Hyderabad
2862 Answers
9 Consultations

5.0 on 5.0

1. U can get divorce on d ground of physical & mental abuse. 

2. Ur daughter s r below the age of 5 so being d natural guardian d court will grant u there custody. For this you have to file a separate case under guardianship. 

3. Maintenance is your right which can be one time or monthly basis which u can get from your husband for yourself & your daughters. For this you have to file seperate case under section 125 crpc.

4. Mutual consent divorce can make things easier. 

Sital Patil
Advocate, Kota
131 Answers

Not rated

1. You can go with this offer to your husband and ask him to give mutual consent divorce.

2. If he doesn't agree for Mutual consent divorce then file divorce on ground of mental and physical cruelty along with maintenance case for your daughters. 

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

Dear Querist

to get mutual consent divorce from your husband who is violent and committed violence upon you, you should file a domestic violence or divorce case and claim maintenance, child custody and compensation along with protection and residence order under the protection of women from domestic violence act or under Hindu Marriage Act, when husband appears before the court then approaches the court for referring the matter for mediation and then settled the matter with your conditions. 

 if both of you would be ready for mutual consent divorce then file MCD petition before the family court under section 13 of the Hindu Marriage Act-1955 and get the divorce within 6 months but the separation period should be more then one year between you and him for mutual consent divorce.


Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5767 Answers
271 Consultations

4.9 on 5.0

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