• I want to file for mutual consent divorce

We have been married since  Feb 2004. we have a 10 year old daughter. it feels like we are unable to live together lot of misunderstandings which now we think can not be resolved relationship has proved to be totally incompatible. I have tried my level best to carryon but it does not seem to work . He is also an alcoholic though earning well. But all these things are of no use. 
1.  My question is how to proceed with filling a divorce ? can I get a guidance and help what are the charges .
2. I  want to keep my daughter with me and want her maintenance as I do not earn enough to give the life that she is living now and do not want to take away that from her  so I would also need as sum every month for my daughter education clothing and other as any other growing child needs dont want to punish her for something that we are not able to solve.
Asked 12 months ago in Family Law from Ghaziabad, Uttar Pradesh
Religion: Hindu
1. One can file a suit for divorce on the ground of cruelty at any point of time after one year of marriage.
2. However since such contested suit for divorce takes lot of years to finally conclude it is best suited if one go for mutual divorce which take around 6 months of time.
3. All the terms of divorce including exchange of stridhan articles, final settlement amount and custody of child should be mentioned in the petition for mutual divorce. 
I may remind that when both the parties agree on the terms mentioned above then only mutual divorce happens.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
The best option is Mutual divorce .ie; husband and wife comes to a mutual understanding that the marriage be dissolved amicably. 
Advantages of mutual divorce
Divorce by Mutual consent saves time, money and energy for both,
Leaves no room for unnecessary quarrel and most importantly avoid washing your dirty linen in public.

The Conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved.

Steps in Court Procedure (13 B)

In all there are two court appearances in a mutual divorce
1.	First A joint petition signed by both parties is filed in court. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Honourable Court.
2.	Thirdly The 6 month period is given for reconciliation, (the honourable court gives a chance to the couple to change their mind)
3.	Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.
4.	Divorce decree will be granted as the Honourable Court may deem fit.

Note 
(a) A petition is to be presented jointly by the parties to the marriage.
(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.
But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.
(c) The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.
(d) The parties have freely consented to the agreement of dissolution of marriage. 

You can also ask Interim maintenance from your husband .
If your husband is not amenable for mutual consent divorce file a case for divorce under the ground cruelty and also seek maintenance .
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1) you have to file petition for divorce by mutual consent before family court in your city

2) the petition would contain consent terms wherein your husband agrees to pay maintenance of X amount per month for daughter education . it would also contain clauses regarding custody of your daughter , return of your streedhan , alimony if any payable to you 

3) mutual consent divorce takes 6 months 

4) litigation fees vary 
Ajay Sethi
Advocate, Mumbai
23363 Answers
1222 Consultations
5.0 on 5.0
The best option is Mutual divorce .ie; husband and wife comes to a mutual understanding that the marriage be dissolved amicably. 
Advantages of mutual divorce
Divorce by Mutual consent saves time, money and energy for both,
Leaves no room for unnecessary quarrel and most importantly avoid washing your dirty linen in public.

The Conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved.

Steps in Court Procedure (13 B)

In all there are two court appearances in a mutual divorce
1.	First A joint petition signed by both parties is filed in court. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Honourable Court.
2.	Thirdly The 6 month period is given for reconciliation, (the honourable court gives a chance to the couple to change their mind)
3.	Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.
4.	Divorce decree will be granted as the Honourable Court may deem fit.

Note 
(a) A petition is to be presented jointly by the parties to the marriage.
(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.
But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.
(c) The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.
(d) The parties have freely consented to the agreement of dissolution of marriage. 

You can also ask Interim maintenance from your husband .
If your husband is not amenable for mutual consent divorce file a case for divorce under the ground cruelty and also seek maintenance .
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. Mutual divorce can be filed only if both spouses are in a positive agreement to end their marriage, and not otherwise. So if he is ready to end the marriage then alone mutual divorce can be filed, failing which you can unilaterally file for divorce on the ground of cruelty. In case of mutual divorce it is for the spouses alone to decide what would the amount of alimony be. The court does not decide it.

2. If there is contested divorce then you can file a case for maintenance for yourself and your daughter. 
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1.  My question is how to proceed with filling a divorce ? can I get a guidance and help what are the charges .
If the difference of opinions are growing every day and the incompatibility is not solvable, then during the course of a normal time, you may speak to him about this issue and inform him your decision to quit this relationship for the reasons cited, and can sk him to give his consent for mutual consent divorce wherein the marriage can be dissolved by a decree of divorce without much legal hassles.  
If he agrees for mutual consent divorce, you can engage a lawyer who will draft a petition for this for both of you and you can follow further course of action as per his/her advise. The lawyer fee will depend on the lawyer whom you propose to engage. 



2. I  want to keep my daughter with me and want her maintenance as I do not earn enough to give the life that she is living now and do not want to take away that from her  so I would also need as sum every month for my daughter education clothing and other as any other growing child needs dont want to punish her for something that we are not able to solve.
In the MOU for mutual consent divorce, you can have it endorsed and agreed by both.  If you desire to retain your child with you and would like him tom provide maintenance for the child, you may draw an agreement to that effect and get this MOU annexed to your divorce decree, so that it will remind him of his duty to maintain his daughter in the future stage too.
Get a MOU properly drafted with a carefully worded deed covering all the aspects you would like to enforce. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
1. It will be prudent on both of your part to go for mutual consent divorce which is hassle free and quickest. You can discuss and decide amicably about your daughter's custody and her maintenance before filing the MCD petition duly mentioning there in how much your husband will pay for her maintenance every month and also that you will not claim any thing else and will not file any case against him.MCD petition is disposed of within 6 & 1/2 months from the date of its filing. If he refuses to jointly file MCD petition, then file a divorce petition on the ground of cruelty, a child custody petition, a DV case claiming maintenance for you (claiming that you do not earn enough to maintain yourself as per the standard of your husband) and your daughter and also 498A complaint (to force him to come to negotiation table),

2.Engage a reliable local lawyer having expertise in this field.
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
As per your question you can file mutual consent divorce under section 13 (B) of HIndu marriage Act, one year of separate living is necessary for mutual consent divorce ,you make one Memorandum of Understanding (MOU) claiming permanent alimony and maintenance of the child as per your standard of living and earning of your husband and you mention in MOU that permanently custody of the child with no interference from your husband 
for filing you have to apply in family court both of you should present at the time of filing suit and after six month you will get the divorce decree that time also both should present.
contact your near by local lawyer
Mir Mansoor Ali
Advocate, Hyderabad
57 Answers
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you can contact me personally or over the phone to get guidance and help.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
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