Divorce by mutual consent is the way a husband and wife who both agree that the marriage should end can have it dissolved by a court without proving any fault. For Hindus, Buddhists, Jains and Sikhs the provision is Section 13B of the Hindu Marriage Act, 1955; for couples who married under the Special Marriage Act, 1954 – including most “court marriages” – it is Section 28 of that Act. Both provisions work the same way: a joint petition after one year of living separately, a waiting period of six to eighteen months, a second joint motion, and a decree. This guide explains each step with the statutory text, the documents and the settlement agreement, when the six-month wait can be waived, what happens if one spouse withdraws consent, and how long the process takes in Delhi.
Mutual consent divorce at a glance
- Law: Section 13B, Hindu Marriage Act, 1955 (Hindus, Buddhists, Jains, Sikhs); Section 28, Special Marriage Act, 1954 (marriages solemnised or registered under that Act).
- Three conditions: the spouses have been living separately for one year or more, they have not been able to live together, and they have mutually agreed that the marriage should be dissolved.
- Two motions: the joint petition (first motion), then a joint second motion not earlier than six months and not later than eighteen months after the petition, on which the court passes the decree.
- Waiver of the six months: possible where the conditions laid down by the Supreme Court in Amardeep Singh v. Harveen Kaur (2017) are met; the Supreme Court can also dissolve a marriage directly under Article 142 (Shilpa Sailesh, 2023).
- Consent must continue: either spouse may withdraw consent before the decree, and the court then cannot grant the divorce (Sureshta Devi v. Om Prakash, 1991).
- Where to file: the Family Court (or District Court where there is none) of the place where the marriage was solemnised, where the spouses last lived together, or where the wife is residing, as she is one of the petitioners (Section 19 HMA).
Reviewed and updated by Century Law Firm, Delhi – October 2026. Statutory references are to the Acts as in force on that date.
What divorce by mutual consent is, and which law applies to you
Under the Hindu Marriage Act and the Special Marriage Act, divorce is the dissolution of a marriage by a decree of a court. In a contested divorce one spouse petitions on a ground listed in the Act – cruelty, desertion, adultery and the others in Section 13 of the Hindu Marriage Act, which our post on the grounds of divorce under Section 13 explains – and must prove it against the other spouse. In a divorce by mutual consent no ground has to be proved; the spouses jointly tell the court that they have lived apart for a year, cannot live together and agree to end the marriage, and the court’s task is to satisfy itself that this is true and that the consent is free.
Which statute applies depends on how you married. Section 13B of the Hindu Marriage Act, 1955, inserted by the Marriage Laws (Amendment) Act, 1976, applies to marriages between Hindus (which, for this Act, includes Buddhists, Jains and Sikhs), whether the marriage took place before or after 1976. Section 28 of the Special Marriage Act, 1954 applies to marriages solemnised or registered under that Act – the usual route for an inter-faith marriage or a “court marriage” – and its wording mirrors Section 13B, with the same one-year separation and the same six-to-eighteen-month window. Christian and Parsi couples have their own statutes, and Muslim spouses can end a marriage by agreement under Muslim personal law; our post on Muslim divorce in India covers that. The rest of this guide follows Section 13B and notes where Section 28 differs.
The three conditions in Section 13B(1)
Section 13B(1) allows a petition for dissolution of marriage by a decree of divorce to 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 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. All three must be stated in the petition and must be true.
“Living separately” does not mean living at different addresses. In Sureshta Devi v. Om Prakash (1991) the Supreme Court explained that the expression means not living like husband and wife; it has no reference to the place of living, and the parties may live under the same roof and yet not be living as husband and wife, provided they have no desire to perform marital obligations. The year must be the year immediately before the petition is presented. The second condition, that the parties “have not been able to live together”, is a statement that the marriage has broken down, and the third is the mutual agreement itself. Section 23(1)(bb) adds a safeguard the court must check before granting the decree: where divorce is sought on the ground of mutual consent, the consent must not have been obtained by force, fraud or undue influence.
A separate rule is often confused with the one-year separation. Section 14(1) of the Act bars any court from entertaining a petition for divorce unless one year has elapsed since the date of the marriage, with a proviso allowing an earlier petition, with the court’s leave, in a case of exceptional hardship to the petitioner or exceptional depravity of the respondent. Section 29(1) of the Special Marriage Act has the same one-year bar counted from the date the marriage certificate was entered in the Marriage Certificate Book. So a couple married less than a year ago ordinarily cannot petition at all, and a couple married for longer must in addition have lived separately for the full year before the petition.
Where the petition is filed
Section 19 of the Hindu Marriage Act lists the courts that have jurisdiction: the district court within whose ordinary original civil jurisdiction the marriage was solemnised, or the respondent resides at the time of the petition, or the parties to the marriage last resided together, or, where the wife is the petitioner, where she is residing on the date of the petition, or, where the respondent lives outside India or has not been heard of as alive for seven years, where the petitioner resides. In a joint petition both spouses are petitioners and there is no respondent, so the clauses of Section 19 that fit are the place of marriage, the place where they last resided together and the place where the wife is residing. Where a Family Court has been established for the area, it exercises the district court’s jurisdiction over suits and proceedings between the parties to a marriage for dissolution of marriage, under Section 7(1) and clause (a) of the Explanation to it in the Family Courts Act, 1984. Family Courts have been established in Delhi; our court and district finder shows the court complex that serves your locality. Two points about Family Courts matter in a mutual consent case: Section 9 of the Family Courts Act requires the court to make an endeavour in the first instance to assist and persuade the parties to arrive at a settlement, and Section 13 provides that no party is entitled as of right to be represented by a legal practitioner, though in practice the petition is drafted and filed by a lawyer and counsel appear with the parties.
Documents and the settlement agreement
The petition is supported by proof of the marriage (the marriage certificate, or the wedding card and photographs where the marriage was not registered – our post on marriage registration explains how a certificate is obtained), identity and address proof of both spouses, passport-size photographs, the affidavits of both spouses stating the facts required by Section 13B(1), and the settlement agreement if the spouses have reached one. The settlement is the heart of a mutual consent divorce. It should deal with everything that could otherwise become a separate case: permanent alimony or a one-time settlement and when it is paid; maintenance for a child; custody of, and visitation to, the children; the return of the wife’s stridhan and the division of jointly held property and belongings; who vacates which home and when; and the withdrawal or quashing of any pending cases between the spouses or their families, each side undertaking to cooperate in that. Our FAQ on maintenance cases explains how maintenance is assessed, which helps in fixing a fair figure. The agreed terms are recorded in the petition and in the statements of the spouses, and the decree then refers to them; Section 28A of the Hindu Marriage Act provides that all decrees and orders made under the Act are enforced in the same manner as decrees of the court in its original civil jurisdiction.
The process: first motion, cooling-off period, second motion and decree
The first motion is the joint petition itself. Both spouses sign it, both appear before the court on the date fixed, and the court records their statements confirming the facts in the petition and the terms of settlement. Any part of the settlement that is to be performed at this stage – a first instalment of alimony, for example – is usually performed on or before this date so that the record shows it.
Section 13B(2) then provides that on the motion of both the parties made not earlier than six months after the date of the presentation of the petition and not later than eighteen months after that date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. The interval between the two motions is the cooling-off period. In Sureshta Devi the Supreme Court described its purpose: the period of six to eighteen months is given to the parties to reflect on their move and to seek advice from relations and friends, and during this period either of them may have second thoughts. The second motion is again made jointly; both spouses appear, confirm that they still want the divorce and that the settlement has been complied with, and the court passes the decree. The statute allows the second motion only within eighteen months of the petition, so a couple who let that date pass must start again with a fresh petition.
When the six-month cooling-off period can be waived
For many years courts differed on whether the six months in Section 13B(2) could be shortened. In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Supreme Court held that the court dealing with the petition may waive the six-month period where four conditions are met: the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of the parties, is already over before the first motion itself; all efforts for mediation and conciliation to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; the parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between them; and the waiting period will only prolong their agony. The judgment also states that the waiver application can be filed one week after the first motion, giving reasons for the prayer for waiver. In practice, therefore, a couple who have lived apart for at least eighteen months before filing, have been through mediation, and have a complete settlement can file the petition and, a week later, an application for waiver, and the second motion can be taken up as soon as the court allows it.
In Shilpa Sailesh v. Varun Sreenivasan (Transfer Petition (Civil) No. 1118 of 2014, decided on 1 May 2023), a five-judge Constitution Bench confirmed that the Supreme Court, exercising its power under Article 142(1) of the Constitution, can grant a divorce by mutual consent without being bound by the procedural requirement to move the second motion, keeping in mind the factors stated in Amardeep Singh, and that this power should be exercised with care and caution. The same judgment holds that the Supreme Court may dissolve a marriage on the ground of its irretrievable breakdown, even where one spouse opposes it, after weighing factors such as the period of cohabitation and separation, the nature of the allegations, earlier court orders, attempts at settlement or mediation, and the position of the children, custody and alimony; but it also holds that a party cannot file a writ petition under Article 32 to seek a divorce directly from the Supreme Court. These powers belong to the Supreme Court alone; a Family Court follows Section 13B and the Amardeep Singh conditions.
If one spouse withdraws consent
Mutual consent must exist when the petition is filed and must continue until the decree is passed. In Sureshta Devi v. Om Prakash the wife, after the joint petition and the recording of statements, applied to have the petition dismissed, saying she had been pressured into consenting; the District Judge dismissed the petition, the High Court reversed him and granted the divorce, and the Supreme Court restored the dismissal. It held that the filing of a joint petition does not by itself dissolve the marriage, that the parties must make a further joint motion, that mutual consent should continue till the decree is passed, and that if there is no consent at the time of the inquiry the court gets no jurisdiction to make a decree. A spouse who changes his or her mind during the cooling-off period can therefore withdraw, and the other spouse’s remedy is then a contested petition on one of the grounds in Section 13. This is why the settlement should be drafted so that the obligations of both sides are performed in step with the two motions, rather than one side performing everything at the first motion.
How long it takes, and what it costs, in Delhi
The statute fixes the minimum: at least six months between the two motions unless waived, and at most eighteen. The rest depends on the court’s calendar. In our experience in the Delhi Family Courts, a petition in which the parties have a complete settlement and both appear on the dates fixed is decided soon after the second motion is heard where the cooling-off period runs in full – the six months plus the court’s time to list the second motion – and within a few weeks of the first motion where the court allows a waiver under Amardeep Singh. A petition filed before the one-year separation is complete, or without a settlement on children and money, takes longer because the court will adjourn it. The court fee payable on the petition can be checked with our Delhi court fee calculator; the lawyer’s fee is a matter of agreement and is best settled in writing at the first meeting. If the spouses live in different cities and a petition has been filed in one of them, a transfer petition can bring the case to a more convenient court.
Mutual consent divorce compared with contested divorce
A contested divorce starts with one spouse’s petition on a statutory ground, is followed by the other spouse’s written statement, evidence from both sides, cross-examination and arguments, and ends with a judgment that can be appealed; it commonly takes years, and the same spouses may be fighting maintenance, custody, domestic-violence and criminal cases in parallel. A mutual consent divorce requires no proof of fault: the court passes the decree after hearing the parties and making such inquiry as it thinks fit, if it is satisfied that a marriage was solemnised and that the averments in the petition are true (Section 13B(2)), and the decree is one that both spouses have asked for. The one-year separation applies to the mutual consent petition but not to a contested one, which can be filed as soon as the ground exists (subject to the Section 14 bar in the first year of marriage). Where only one spouse wants a divorce, the alternatives are a contested petition, judicial separation under Section 10, or mediation through the court to turn the case into a mutual one; our post on how mediation works explains the process.
Disadvantages and mistakes to avoid
The speed of a mutual consent divorce is also its risk. Once the decree is passed, the terms recorded in the settlement are what each spouse is left with; a spouse who agreed to a low one-time alimony, gave up a claim to a jointly bought flat, or accepted an informal custody arrangement cannot reopen those matters merely because the terms now seem unfair; a decree passed on the spouses’ own consent is, for practical purposes, final. Section 23(1)(bb) protects only against consent obtained by force, fraud or undue influence, which has to be proved. The common mistakes are agreeing without full disclosure of the other spouse’s income and assets; performing all of one’s own obligations at the first motion while the other side’s are left for later; leaving the children’s custody and expenses to a verbal understanding; forgetting to provide for the withdrawal of pending cases; and filing before the one year of separation is complete, which leads to dismissal. A settlement that is specific about amounts, dates and documents, and a petition that is accurate about dates, avoid all of these.
आपसी सहमति से तलाक – हिंदी में (Mutual consent divorce in Hindi)
आपसी सहमति से तलाक (mutual consent divorce) वह प्रक्रिया है जिसमें पति और पत्नी दोनों मिलकर अदालत से विवाह समाप्त करने की माँग करते हैं और किसी एक पक्ष को दूसरे की गलती साबित नहीं करनी पड़ती। हिंदुओं, बौद्धों, जैनों और सिखों के लिए यह प्रावधान हिंदू विवाह अधिनियम, 1955 की धारा 13B में है और कोर्ट मैरिज (विशेष विवाह अधिनियम, 1954) के लिए उसी अधिनियम की धारा 28 में, जिसकी शर्तें वही हैं। तीन शर्तें ज़रूरी हैं: दोनों एक साल या उससे अधिक से अलग रह रहे हों (अलग रहने का मतलब पति-पत्नी की तरह न रहना है, एक ही घर में रहते हुए भी यह संभव है – सुरेष्टा देवी बनाम ओम प्रकाश, 1991), वे साथ नहीं रह पा रहे हों, और दोनों विवाह समाप्त करने पर सहमत हों। इसके अलावा धारा 14 के अनुसार विवाह के एक साल पूरे होने से पहले तलाक की याचिका सामान्यतः दायर नहीं की जा सकती। याचिका उस ज़िले की फैमिली कोर्ट में दायर होती है जहाँ विवाह हुआ, जहाँ दोनों अंतिम बार साथ रहे, या जहाँ पत्नी रह रही है, क्योंकि वह भी याचिकाकर्ता है (धारा 19)।
प्रक्रिया में दो मोशन होते हैं। पहला मोशन संयुक्त याचिका है, जिसमें दोनों के बयान और समझौते की शर्तें (गुज़ारा भत्ता या एकमुश्त राशि, बच्चों की कस्टडी और खर्च, स्त्रीधन और संपत्ति, लंबित मुकदमों की वापसी) दर्ज होती हैं। धारा 13B(2) के अनुसार दूसरा मोशन याचिका के छह महीने बाद और अठारह महीने के भीतर दोनों मिलकर करते हैं, और अदालत संतुष्ट होने पर तलाक की डिक्री पारित करती है। बीच का समय “कूलिंग-ऑफ पीरियड” है। अमरदीप सिंह बनाम हरवीन कौर (2017) में सर्वोच्च न्यायालय ने कहा कि अदालत छह महीने की यह अवधि माफ कर सकती है, यदि याचिका से पहले ही एक साल का अलगाव और छह महीने की अवधि पूरी हो चुकी हो, मध्यस्थता के प्रयास विफल हो चुके हों, दोनों ने गुज़ारा भत्ता, बच्चों की कस्टडी और अन्य सभी मुद्दे सुलझा लिए हों, और प्रतीक्षा केवल पीड़ा बढ़ाएगी; छूट का आवेदन पहले मोशन के एक सप्ताह बाद दिया जा सकता है। डिक्री से पहले कोई भी पक्ष सहमति वापस ले सकता है और तब अदालत तलाक नहीं दे सकती (सुरेष्टा देवी, 1991)। 2023 में शिल्पा शैलेश बनाम वरुण श्रीनिवासन में संविधान पीठ ने माना कि सर्वोच्च न्यायालय अनुच्छेद 142 के तहत दूसरे मोशन की प्रक्रिया के बिना भी आपसी सहमति से तलाक दे सकता है, पर यह शक्ति केवल सर्वोच्च न्यायालय की है।
Frequently asked questions
Yes. Section 13B(1) of the Hindu Marriage Act and Section 28(1) of the Special Marriage Act both require that the spouses have been living separately for one year or more before the petition. “Living separately” means not living as husband and wife, which the Supreme Court has held can be the case even under the same roof (Sureshta Devi, 1991).
At least six months between the first and second motion unless the court waives the period, and the second motion must be made within eighteen months of the petition. With a waiver under Amardeep Singh v. Harveen Kaur (2017) – available where the one-year separation plus six months were already complete before filing, mediation has failed and everything is settled – the decree can follow within weeks of the first motion.
Yes, by the court hearing the petition, on an application filed one week after the first motion, if the four conditions in Amardeep Singh v. Harveen Kaur are met. The Supreme Court can additionally dispense with the second motion altogether under Article 142 (Shilpa Sailesh v. Varun Sreenivasan, 2023), but only in a case before it.
The court cannot pass a decree of divorce by mutual consent without the consent of both spouses at the time of the second motion (Sureshta Devi v. Om Prakash, 1991). The other spouse’s remedy is a contested petition on a ground in Section 13, and the settlement should be drafted so that neither side performs everything before the decree.
A marriage solemnised or registered under the Special Marriage Act, 1954 is dissolved by mutual consent under Section 28 of that Act, which has the same one-year separation and the same six-to-eighteen-month window as Section 13B of the Hindu Marriage Act. Section 29 of the Special Marriage Act also bars a divorce petition within one year of the marriage certificate, except with leave in cases of exceptional hardship or depravity.
In the Family Court (or District Court where there is no Family Court) of the place where the marriage was solemnised, where the spouses last lived together, or where the wife is residing, as she is one of the petitioners (Section 19 HMA). Family Courts have been established in Delhi for these cases.
Ordinarily no. Section 14 of the Hindu Marriage Act bars a divorce petition until one year has elapsed since the marriage, and in any event the one year of living separately must be complete. The court may grant leave to file earlier only in a case of exceptional hardship or exceptional depravity.
Permanent alimony or a one-time settlement and its payment schedule, maintenance and custody of children and visitation, return of stridhan and division of property, who vacates the matrimonial home, and withdrawal of all pending cases. The terms are recorded in the petition and the spouses’ statements, and the decree is enforced like any civil decree (Section 28A HMA).
The petition is a joint one, so a single lawyer can draft and file it for both spouses. Where the terms are still being negotiated, each spouse is better advised separately so that the settlement is informed on both sides, since it cannot be reopened after the decree except for force, fraud or undue influence.
The terms agreed are final: alimony, property and custody arrangements recorded in the decree cannot be reopened merely because they later seem unfair. Non-disclosure of income or assets by one spouse, a verbal custody understanding, and performing all obligations before the decree are the usual causes of regret.
No. Section 13B(2) says the decree declares the marriage dissolved with effect from the date of the decree, which is passed on the second motion. Until then the spouses remain married.
Not by one spouse alone. The terms recorded in the decree bind both; they can be varied only by agreement between the spouses, or through the court where the law allows a later application, as it does on a child’s custody and maintenance. Before passing the decree the court must be satisfied that the consent was not obtained by force, fraud or undue influence (Section 23(1)(bb)), and no appeal lies from a decree passed by a Family Court with the consent of the parties (Section 19(2) of the Family Courts Act, 1984).
No ground has to be proved and no evidence led against the other spouse; the proceedings are shorter and far less costly than a contested petition; the settlement is decided by the spouses themselves rather than imposed by a judgment; and, because the decree is one both asked for, it ends the litigation instead of starting an appeal.
There is no fixed scale. The fee depends on the lawyer, the complexity of the settlement and the number of hearings, and should be agreed in writing at the first meeting; the court fee on the petition is separate and can be checked with our Delhi court fee calculator.
Experience in the Family Courts, since the settlement agreement is the document that will govern your finances and your children for years; the ability to draft the alimony, custody and property terms precisely; and a clear statement of fees. For a joint petition one lawyer can act for both spouses, but where the terms are still being negotiated each spouse is better advised separately.
Our family-law advocates advise on whether the conditions of Section 13B or Section 28 are met, draft the settlement agreement and the joint petition, file it in the right Family Court in Delhi, appear with the parties at the first and second motion, apply for waiver of the cooling-off period where the Amardeep Singh conditions are satisfied, and attend to the withdrawal of pending cases and the enforcement of the settlement.
Under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, divorce is the dissolution of a marriage by a decree of a court; until the decree is passed the spouses remain married. Under the Hindu Marriage Act a marriage can be dissolved in two ways: on a petition by one spouse on a ground listed in Section 13, such as adultery, cruelty, desertion for a continuous period of not less than two years, conversion to another religion, incurable unsoundness of mind or renunciation of the world, which the court must be satisfied exists, or by a joint petition under Section 13B where both spouses agree. The Special Marriage Act has the same two routes in Sections 27 and 28 for marriages solemnised or registered under that Act. Either party may marry again once the marriage has been dissolved and there is no right of appeal against the decree, or the time for appealing has expired without an appeal being presented, or an appeal has been presented and dismissed (Section 15 of the Hindu Marriage Act).
It is a divorce granted on a joint petition of the husband and wife, without either of them having to prove a fault of the other. Section 13B(1) of the Hindu Marriage Act, 1955, inserted by the Marriage Laws (Amendment) Act, 1976 with effect from 27 May 1976, allows both parties to a marriage together to petition for dissolution of the marriage by a decree of divorce 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. The court passes the decree on a second joint motion made not earlier than six months and not later than eighteen months after the petition (Section 13B(2)). Section 28 of the Special Marriage Act, 1954 provides the same for marriages solemnised or registered under that Act.
Four things must be in place. First, a court cannot entertain a divorce petition presented before one year has passed since the date of the marriage (Section 14(1) of the Hindu Marriage Act), and under the Special Marriage Act no divorce petition may be presented before one year has passed since the date on which the marriage certificate was entered in the Marriage Certificate Book (Section 29(1)), unless the court gives leave in a case of exceptional hardship to the petitioner or exceptional depravity of the respondent. Second, the three conditions of Section 13B(1) must be true: the spouses have been living separately for a period of one year or more, they have not been able to live together, and they have mutually agreed that the marriage should be dissolved. Third, the consent must be free: Section 23(1)(bb) requires the court to be satisfied that it was not obtained by force, fraud or undue influence. Fourth, the consent must continue until the decree is passed; if either spouse withdraws it before then, the court cannot pass a decree by mutual consent (Sureshta Devi v. Om Prakash, 1991).
A contested divorce is started by one spouse alone on a ground listed in Section 13 of the Hindu Marriage Act, such as adultery, cruelty, desertion for a continuous period of not less than two years, conversion or unsoundness of mind, and the court must be satisfied that the ground exists. The other spouse can defend the petition, the proceedings are regulated, as far as may be, by the Code of Civil Procedure (Section 21), and the decree can be appealed (Section 28 of the Hindu Marriage Act; where a Family Court passes it, the appeal lies to the High Court within thirty days under Section 19 of the Family Courts Act, 1984). A mutual consent divorce is a joint petition under Section 13B on the ground that the spouses have lived separately for a year or more, have not been able to live together and have agreed that the marriage should be dissolved; no fault of either spouse has to be proved, and after the interval of six to eighteen months the court, after hearing the parties and making such inquiry as it thinks fit, passes the decree if it is satisfied that a marriage has been solemnised and that the averments in the petition are true. The one-year separation in Section 13B(1) is a condition of the mutual consent petition only; a contested petition can be filed as soon as the ground exists, subject to the bar in Section 14 on any divorce petition within one year of the marriage. If the spouses reach a settlement, they can present a joint petition under Section 13B when its conditions are met, and a Family Court is required, in the first instance and where the nature and circumstances of the case allow, to try to assist and persuade the parties to arrive at a settlement (Section 9 of the Family Courts Act, 1984).
Both spouses present a joint petition under Section 13B(1) of the Hindu Marriage Act stating that they have lived separately for a year or more, have not been able to live together and agree that the marriage should be dissolved. It is filed in the Family Court (or the district court where there is none) of the place where the marriage was solemnised, where the spouses last lived together, or where the wife lives if she is a petitioner (Section 19 of the Hindu Marriage Act; Sections 7 and 8 of the Family Courts Act, 1984). Not earlier than six months and not later than eighteen months after the petition, if it has not been withdrawn, both spouses make the second motion; the court, after hearing them and making such inquiry as it thinks fit, and on being satisfied that a marriage was solemnised and that the averments in the petition are true, passes a decree dissolving the marriage with effect from the date of the decree (Section 13B(2)). The six months can be waived on an application filed one week after the first motion if the conditions laid down in Amardeep Singh v. Harveen Kaur (2017) are met.
Conclusion
A mutual consent divorce is the least painful way to end a marriage in India when both spouses accept that it is over: one year of living apart, a joint petition with a complete settlement, a second joint motion after the cooling-off period – or sooner if the Amardeep Singh conditions are met – and a decree that both sides can live with. Its weak points are the continuing need for consent until the decree and the finality of the settlement, and both are managed by careful drafting and by performing the agreed terms in step with the two motions. Century Law Firm’s family-law advocates handle mutual consent petitions in all the Delhi Family Courts, from drafting the settlement to the second motion; see our divorce lawyer in Delhi page or contact us for a consultation.
Sources used for this post: the Hindu Marriage Act, 1955 (Sections 13B, 14, 19, 23(1)(bb) and 28A); the Special Marriage Act, 1954 (Sections 28 and 29); the Family Courts Act, 1984 (Sections 7, 9 and 13); Sureshta Devi v. Om Prakash, Supreme Court, 7 February 1991; Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, as reproduced in Shilpa Sailesh v. Varun Sreenivasan; and Shilpa Sailesh v. Varun Sreenivasan, Supreme Court Constitution Bench, 1 May 2023.
