Divorce by Mutual Consent is the fastest way or procedure for getting divorce in India. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year. Divorce by mutual consent is fastest because parties can get divorce in six months only and can be shortened if the parties are living separately since long time spam. In this case,  spouses can mutually agree to a settlement and file for a “mutual divorce” under under following Acts which may vary according to law applicable to parties:-

Sec.13B The Hindu Marriage Act.,Sec 28 The Special Marriage Act,Sec10 A The Indian Divorce Act


 Seeking a divorce by mutual consent is same under each Act, which is initiated by filing a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners present in Court, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required to reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, before filling petition are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses which should be mentioned in their petition for divorce by mutual consent,.

Custody Of Child

In the matrimonial issue, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.

Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.

Generally  Guardian and Wards Court have power to grant:

• Permanent Custody ,Interim Custody and Visitation Right

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criteria before awarding final custody in favour of one spouse as against the other is Welfare of the Child.

Important factors, amongst other, which are considered by the Court in awarding custody are:

 

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court
.

Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court.

 The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.

In nut shell, I can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

Supreme Court Judgments Cruelty on Husband and Divorce

Amarjit Kaur vs Harbhajan Singh And Anr
Equivalent citations: Bench: D Raju, H Sema  - 2003 (1) AWC 344 SC, (2003) 2 CALLT 23 SC - 23 October, 2002
Order
1. The above appeals have been filed against the order of a learned single judge of the High Court of Punjab and Haryana at Chandigarh dated 10.11.2000 in civil revision No. 5057/ 1998 and a subsequent order dated 7.12.2000 passed in a review application No. 112-C-II/2000.
2. Heard Mr. Raju Ramachandran, learned senior counsel for the appellant and Mr. K. Rajendra Choudhary, learned senior counsel for the respondent.
3. The appellant is the wife of the first respondent. The respondent - husband has filed a petition under Section 13 of the Hindu Marriage Act, 1955 before the court of learned district judge, Ludhiana seeking dissolution of the marriage by grant of a decree for divorce on the grounds of alleged adultery and cruelty. The said petition is still pending for trial and final disposal. Pending the said petition, the appellant herein filed an application under Section 24 of the Hindu Marriage Act, 1955 claiming maintenance for a sum of Rs. 3000/- per month for herself and Rs. 1000/- each for minor children residing with her. There is no dispute over the fact that out of the lawful wedlock, the appellant has given birth to three daughters and one son, of which, one daughter is said to be with the appellant. There is yet another son who is also living with the appellant-wife, who also is claimed to be a son borne out of the lawful wedlock, though the respondent-husband would raise doubts about the details of parentage of the said child. Having regard to the fact that a limited notice has been issued in this case, confined to the question with regard to the order passed by the High Court for conducting a DNA test of the child, it is unnecessary to deal with the details with reference to the claims made by the respective parties about the details of income of either of the parties. Suffice it to state that the learned trial judge has chosen to reject the claim for interim maintenance and on a revision before the High Court, the learned single judge though was prepared to countenance the claim of the wife and as a matter of fact directed the respondent -husband to pay Rs. 2000/- by way of litigation expenses to the appellant and pay a further sum of Rs. 2000/- per month by way of maintenance from the date of her application, proceeded further and observed as follows :-
"During the course of the submissions, it was suggested to the counsel for the petitioner and his client Smt. Amarjit Kaur whether they are willing to get DNA test of the male child namely Samarjit Singh. Before concluding, directions are also given to the trial court to order for conducting the DNA test of the male child who is in the custody of the petitioner and if the test goes against the petitioner, she will not be entitled to get any maintenance pendente lite for herself but she will definitely get the maintenance for the girl child whose maintenance is fixed at Rs. 1000/- per month."
4. Aggrieved, the wife moved an application by way of review and sought to bring to the notice of the court the decision reported in Goutam Kundu v. State of West Bengal and Anr., The learned single judge, by a cryptic order, has chosen to reject the review application with costs, in a sum of Rs. 1000/- Hence, the above appeals.
5. The learned senior counsel for the appellant strenuously contended that the conduct of the parties which requires to be adjudicated in the main writ petition has no relevance, at the stage of granting interim or pendente lite maintenance and that the consideration in this regard has to be confined to the criteria specified in Section 24 of the Hindu Marriage Act, 1955. It was also pointed out that imposition of a condition which will operate as a disfeasance clause, to deprive the very maintenance order to be paid, particularly of the nature imposed in this case directing the conduct of DNA test of the male child in question is not warranted. Argued the learned counsel further that this Court in the decision in Goutam Kundu's case (supra), declared the legal position as to the circumstances under which and the limitations to be observed in compelling anyone to give a sample of blood against his/her will for DNA analysis, keeping in view, the serious consequences flowing from the same, i.e., the branding of a child as a bastard and the mother as an unchaste woman. It was made clear therein that no adverse inference can be drawn against the person for his refusal. According to the learned counsel for the appellant, such an order could not and ought not to have been made at this stage and in the manner it has been done, by the court on its own imposing the same as a conditional direction affecting even the right to get pendent lite maintenance, without even their being any formal application from the respondent - husband and justifying any such claim, in accordance with law.
6. Per contra, the learned senior counsel appearing for the respondent, relying on the decision reported in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr., JT 1999 (8) SC 329 contended that in the matter of grant of maintenance, there is no impediment for the court to impose a condition of the nature and in case of refusal to cooperate to conduct the DNA test, make the defaulting party suffer consequences thereof. It was also urged that no exception could be taken to the course adopted by the learned single judge in the light of the serious dispute raised with reference to the parentage of one male child living with the wife. The learned counsel also contended that the discretion exercised by the learned single judge of the High Court on the peculiar facts and circumstances of the case, is not at all a matter which needs or calls for any interference in an appeal under Article 136 of the Constitution of India.
7. We have carefully considered the submissions of learned counsel appearing on either side.
8. Section 24 of the Hindu Marriage Act, 1955 empowers the court in any proceeding under the Act, if it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent. Once the High Court, in this case, has come to the conclusion that the wife - appellant herein has to be provided with the litigation expenses and monthly maintenance, it is beyond comprehension as to how, de hors the criteria laid down in the statutory provision itself, the court could have thought of imposing an extraneous condition, with a default clause which is likely to defeat the very claim which has been sustained by the court itself. Consideration as to the ultimate outcome of the main proceeding after regular trial would be wholly alien to assess the need or necessity for awarding interim maintenance, as long as the marriage, the dissolution of which has been sought, cannot be disputed, and the marital relationship of husband and wife subsisted. As noticed earlier, the relevant statutory consideration being only that either of the party, who was the petitioner in the application under Section 24 of the Act, has no independent income sufficient for her or his support, for the grant of interim maintenance, the same has to be granted and the discretion thereafter left with the court, in our view, is only with reference to reasonableness of the amount that could be awarded and not to impose any condition, which has self-defeating consequence. Therefore, we are unable to approve of the course adopted by the learned single judge, in this case.
9. Coming now to the nature of the condition imposed, though, it has been seriously contended for the appellant that no such condition could have been imposed to compel the undergoing of a DNA test of the male child, we do not propose to express any opinion on the legality or propriety of the court undertaking consideration at the appropriate stage, by the court competent, in the main petition of any application moved in an appropriate manner according to law, but we would confine our consideration to the limited aspect as to whether the High Court could have imposed such a condition at the stage of awarding interim maintenance pendente lite and that too without an application for the purpose from the other party, at the instance of the court by way of a suggestion put to the appellant in the course of consideration of the application for interim maintenance. The law in the matter governing the consideration and passing of any order in respect of a claim for DNA test has sufficiently been laid down by this Court and if a party to a proceeding cannot be compelled against his/her wish to undergo any such test, we fail to see how the court on its own could have imposed a condition without any consideration whatsoever of any of the criteria laid down by this Court, by adopting a novel device of imposing it as a condition for the grant of the interim maintenance, with a default clause, which as rightly contended for the appellant, will have the inevitable consequences of predetermining the claim about the parentage with serious consequences even at the preliminary stage. The procedure, thus, adopted by the High Court does not appear to be neither just nor reasonable or in conformity with the principles of law laid down by this Court and consequently the order is liable to be set aside. The decision in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (supra) relied for the respondent, in our view, has no relevance or application to the case on hand. That was a case wherein, in dealing with a claim for maintenance invoking the summary proceedings under Section 125 of the Cr.P.C., the husband attempted to defeat the claim made by the wife by asserting non performance of essential rites at the time of marriage, the factum of which as well as the parentage of the child could not be questioned. In the process of ascertaining the genuineness of the said stand, when the suggestion made to the husband to undergo DNA test was refused by him, and the court dealing with the application by summary proceedings chose to observe that the husband was disentitled to challenge the paternity of the child in the proceedings under Section 125 Cr.P.C., this Court declined to interfere with the order of the trial court on the question of prima facie satisfaction recorded as to the proof of marriage. We see absolutely no general principle of law laid down in this case which could be said to lend any support to the plea on behalf of the respondent. We are unable to persuade ourselves to agree with the plea urged for the respondent that the case does not warrant our interference in these appeals, since, we find that a serious and flagrant violation of law has been committed by the High Court, in the matter disposing of the revision and review petition, and the same ought not to be allowed to get sanctified, with our approval, too.
10. The order passed rejecting the review application summarily despite the fact that a judgment of this Court relevant for the purpose has been brought to the notice of the court, without even expressing any view on the matter, by itself, is sufficient to set aside the order made on the review petition. It is really surprising that the court should have thought of awarding cost in a sum of Rs. 1000/- against the wife, who was before the court seeking for maintenance pendente lite.
11. The appeals are allowed. The order in so far as it relates to the offending condition relating to the DNA test is set aside. In other respects, the order in so far as it awards the litigation expenses and monthly maintenance is sustained. We make it clear that we are not expressing any opinion about the rights of the parties to seek for the relief for the DNA test or the evidentiary value of the same and the trial court shall be at liberty to consider the matter relating to such claims on their own merits, in accordance with law. No costs.