A mutual consent divorce is the quickest and least painful way to end a marriage when both spouses agree. For Hindus, Sikhs, Jains and Buddhists it is governed by Section 13B of the Hindu Marriage Act, 1955, and other personal laws have similar provisions.
Conditions under Section 13B
- The spouses have been living separately for at least one year.
- They have not been able to live together.
- They have mutually agreed that the marriage should be dissolved.
The two motions
The case moves in two stages. In the first motion, both spouses sign a joint petition and appear before the Family Court to record their statements. In the second motion, they appear again and confirm that they still want the divorce. The court then passes the decree.
The six-month period, and when it can be waived
The Act provides for a waiting period of six months between the two motions, to allow for reflection. The Supreme Court, in Amardeep Singh v. Harveen Kaur (2017), held that this period is directory, not mandatory. A court can waive it on a waiver application where the one-year separation is already over, efforts at reconciliation or mediation have failed, the settlement is genuine and waiting would only prolong the agony.
When the court allows the application, a mutual divorce can often be completed in about one to two months, instead of six months or more. Whether the waiver is allowed depends on the facts and on the judge.
What the settlement should cover
- Permanent alimony or a one-time settlement, and how it is paid
- Custody and visitation for any children, and their expenses
- Return of stridhan, jewellery and household goods
- Division of property, loans and joint accounts
- Withdrawal of other cases between the two sides
Documents commonly required
- Marriage certificate and wedding photographs
- Address proofs of both spouses and identity documents
- Proof of separation, such as separate addresses
- Income proofs, and the settlement agreement
- Passport and visa copies for spouses abroad
If one spouse lives abroad
A spouse abroad can often take part through a power of attorney and, where the court permits, by video link. We explain these steps on our page about mutual consent divorce in Delhi and NRI divorce.
Please note: This article gives general information and is not legal advice. Every case depends on its own facts, so please consult an advocate before acting.