mutual divorce petition: maintenance
My friend and his wife had decided to separate mutually around 7-8 months back. However immediately after such decision his wife got a job in a different city and she moved out. They've been effectively living separately for 7-8 months. He wants to file for divorce. Is this time period sufficient to count as separation for a mutual divorce petition? And, will she be able to claim maintenance from me inspite of being economically independent? If yes, how much?
Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves 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.
Duration of Divorce in Mutual Consent varies from one month to six months or more from States to States and as per the High Court directions.
Time duration for obtaining divorce varies from case to case & place to place. Generally speaking, contested divorce proceedings take approximately 18 to 24 months. Mutual Consent Divorce varies from 4 weeks to 7 months and more. In Delhi, Mutual Consent Divorce is possible with in two to four weeks.
Generally speaking procedure for obtaining Divorce in all forms of law (based on religion) is same with only bit of variation.
S. 13B of the Hindu Marriage Act governs divorce by mutual consent. This section allows a petition for dissolution of marriage to bepresented to the district court by both the parties to a marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
S. 13B (2) states that after a minimum period of six months the Court shall dissolve the marriage if it is of the opinion that the conditions for divorce by mutual consent have been satisfied.
Sureshta Devi v. Om Prakash AIR 1992 SC 1904: The Court in this case observed that
“the period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations”
Both the husband and the wife are entitled to obtain maintenance from the other party for a divorce under the Hindu Marriage Act. When the divorce has been obtained by mutual consent, the parties are required to submit a voluntary agreement specifying the quantum and extent of maintenance that they have mutually agreed upon.
dear, Divorce is the termination of a marital union, the canceling and/or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country and/or state.This time period is not sufficient for filing of case of divorce. Infact separation is not a ground of divorce, desertion is.Under Hindu Marriage Act, 1955 one of the ground of divorce is desetion i.e. If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion. In this period of time both the spouse must not make any relationship between them. The period of separation must be continuous and uninterrupted. Ordinarily, proof of desertion is a clear-cut factual matter. Courts generally require evidence that the departure was voluntary and that the deserted husband or wife in no way provoked or agreed to the abandonment. Constructive desertion occurs when one party makes life so intolerable for his or her spouse that the spouse has no real choice but to leave the marital home. For an individual to have legal justification for departing, it is often required that the spouse act so wrongfully as to constitute grounds for divorce. Yes, she can claim maintenance. Amount of maintenance to be paid is sole discretion of court but it depends on various factors like education of wife, whether the wife is working or not, how much husband is earning. In general cases it is one-third of total amount earned by husband in the case where wife is incapable to maintain herself.Regards
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