Quick answer
- Under Section 13B of the Hindu Marriage Act, 1955, spouses who have lived separately for at least one year and agree to divorce can file a joint petition.
- There are two motions. The second motion is normally filed after 6 months and within 18 months of the first.
- In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held the 6-month period is not mandatory. The Family Court can waive it if the conditions are met.
- Settle everything in writing first: alimony, stridhan, custody, and withdrawal of pending cases.
Mutual consent divorce is the fastest and least stressful way to end a marriage in India. When both spouses agree on the terms, it can often be completed in a few months.
Who can file for mutual consent divorce?
Under Section 13B, both spouses must show that:
- They have been living separately for one year or more before filing. Living under the same roof without living as husband and wife can also count.
- They have not been able to live together
- They have mutually agreed that the marriage should be dissolved
Under the Special Marriage Act, 1954, Section 28 is the equivalent provision.
What is the step-by-step process?
- Settlement: Agree on alimony, stridhan and gifts, child custody and visitation, and withdrawal of pending cases (maintenance, domestic violence, Section 85 BNS, etc.)
- First motion: A joint petition is filed in the Family Court, and both parties’ statements are recorded
- Cooling period: Six months from the first motion, unless waived
- Second motion: Both parties confirm consent. The court passes the divorce decree
Can the 6-month waiting period be waived?
Yes. In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Supreme Court held that the period is directory, not mandatory. The court may waive it where:
- The statutory period of 6 months plus the 1 year of separation has already passed before the first motion
- All efforts at mediation and reconciliation have failed
- The parties have genuinely settled all their differences, including alimony and custody
- Waiting would only prolong their agony
An application for waiver can be filed a week after the first motion.
What if one spouse withdraws consent?
Consent must continue until the decree. Either spouse can withdraw before the second motion. That is why a clear written settlement, with timelines for payments, is important. In Shilpa Sailesh v. Varun Sreenivasan (2023), the Supreme Court also confirmed that it can itself dissolve a marriage that has irretrievably broken down, using Article 142.
Which documents are needed?
- Marriage certificate or wedding photographs and invitation
- Address and ID proof of both spouses
- Proof of separate residence for one year, where available
- Income and asset details, and the signed settlement terms
- Details of children and any pending cases
Can you appear by video conference?
Many Family Courts, including those in Delhi NCR, allow a spouse living abroad to appear by video conference with permission. This is useful for NRI clients.
Need help?
See our mutual consent divorce lawyer in Noida page for fees, timelines and the documents we prepare.
Sources
- Hindu Marriage Act, 1955 — Section 13B; Special Marriage Act, 1954 — Section 28
- Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746
- Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544 (Constitution Bench)
This article is general legal information, not legal advice for your specific case. Law and procedure change; please consult an advocate before acting.
