According to section 10A of the Divorce Act 1869, divorce by mutual consent is not permitted within two years of separation. A petition for dissolution of marriage may be presented 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 two years or more,
- they have not been able to live together and
- they have mutually agreed that the marriage should be dissolved
A period of separation for two years is mandatory for the mutual consent divorce. Hence, you cannot file a mutual divorce case within one year of marriage. If there is exceptional hardship to retain the marital status or due to incompatibility of spouses, it is impossible for them to live together then you can get mutual divorce.
In this situation, you have to move a petition to the Supreme Court under Article 142 of the Constitution to grant a divorce on the exceptional ground i.e. the marriage is irretrievable.
In Shilpa Shailesh vs Varun Srinivasan 2023 the Supreme Court has held that if the marriage is irretrievably break down no possibility of reconciliation the Court has power under Article 142 to dissolve the marriage to do complete justice.
It is not possible to dissolve the marriage through a notorised agreement because a decree of competent court is mandatory for the dissolution of marriage. That agreement or out of the court divorce has no legal sanctity. It shall not dissolve your marital status.
