In This Guide
A mutual consent divorce under section 13B of the Hindu Marriage Act is possible when you and your spouse have lived separately for at least one year and both agree to divorce. You file a joint petition (first motion) in the family court and confirm it in a second motion after six months, a wait the court may waive.
Deciding to end a marriage is rarely easy, even when you both agree. The good news is that a mutual consent divorce lets you part with dignity, settle things privately, and avoid a long contested case. This guide walks you through the process.
Who can file for a mutual consent divorce?
Section 13B of the Hindu Marriage Act, 1955 applies to Hindus, Buddhists, Jains and Sikhs. If your marriage was registered or solemnised under the Special Marriage Act, 1954, section 28 of that Act provides a similar process. Couples governed by other personal laws, such as Muslim, Christian or Parsi law, follow their own rules, so check the law that applies to your marriage.
What are the conditions for a mutual divorce?
Under section 13B, both of you must show the court that:
- you have been living separately for at least one year before filing
- you have not been able to live together
- you have both agreed that the marriage should be dissolved
"Living separately" means not living together as husband and wife. If you still share a house for practical reasons, discuss this with your lawyer before you file.
Your consent must be free. It cannot be obtained by pressure, threat or fraud, and the court will check this.
Settle the terms before you file
The heart of a mutual divorce is the settlement between you. Discuss and put in writing:
- alimony or maintenance: whether a one-time amount or periodic payments, and the schedule
- child custody and visitation: who the children will live with, how the other parent will meet them, and contribution to their expenses and education
- stridhan and gifts: return of the wife's jewellery, gifts and personal belongings
- property and joint loans: who keeps which property, and who repays shared loans
- pending cases: whether any other cases between you will be withdrawn
Many couples record these terms in a written settlement. Mediation through the court or a mediation centre can help if you are stuck on a few points.
Tip: Be sure every term is clear and workable before the first motion. It is common to schedule payments in parts, for example some at the first motion and the rest at the second, so both of you have confidence the settlement will be honoured.
Mutual divorce process: step by step
- Agree and prepare. Settle the terms above and gather your documents.
- Draft the joint petition. Your lawyer drafts a joint petition with supporting affidavits, setting out the marriage details, the period of separation and the agreed terms.
- File the first motion. File the petition in the family court (or district court where there is no family court) with jurisdiction, usually where the marriage took place, where you last lived together, or where the wife now lives.
- Appear before the court. Both of you usually appear in person. The court records your statements and, if satisfied, passes an order on the first motion.
- Waiting period. The law provides a six-month period after the first motion, giving you time to reflect. The second motion must be moved after six months and within 18 months of presenting the petition.
- File the second motion. Both of you confirm that you still want the divorce and that the settlement terms stand.
- Decree of divorce. If satisfied, the court grants a decree dissolving the marriage. Collect a certified copy and keep it safely.
Can the six-month waiting period be waived?
Yes, in suitable cases. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period is not mandatory and the court may waive it. Courts generally look at whether you have already lived apart for a long time, whether efforts at reconciliation and mediation have failed, and whether all issues such as alimony and custody are genuinely settled. You can apply for a waiver after filing the first motion.
What if one spouse changes their mind?
Either spouse can withdraw consent before the decree is passed. If that happens, the court cannot grant a mutual consent divorce. The other spouse may then have to consider a contested divorce on the grounds available in law, which usually takes longer. This is one more reason to work through the settlement carefully at the start.
Documents usually required
- proof of marriage, such as the marriage certificate, wedding invitation or photographs
- identity and address proof of both spouses
- passport-size photographs
- proof of separate residence for at least one year, where available
- details of income, assets and liabilities
- details of children, if any
- the signed settlement terms
How NYAY GHAR can help
A well-drafted petition and a clear settlement make the process smoother and protect both of you later. Through NYAY GHAR, you can request legal assistance and be connected with an advocate who can explain the law that applies to your marriage, draft the joint petition and settlement, and guide you through both motions. Visit our family law practice area page. If you are facing abuse at home, please read our guide on domestic violence protection orders, and to prepare for your consultation, see our first meeting with a lawyer checklist.
This guide is general legal information, not legal advice for your specific case.
Written by the NYAY GHAR team from the relevant Acts and Supreme Court judgments, for general awareness. Laws change, so check the current position with a qualified advocate before acting.
Official Sources
Frequently Asked Questions
How long does a mutual consent divorce take in India?
The law sets a six-month gap between the first and second motion, so it usually takes at least that long plus court scheduling. If the court waives the waiting period, it can be faster.
Do both spouses need to be present in court?
Courts usually require both spouses to appear for the first and second motion so they can confirm consent. Ask your lawyer whether your court allows any other arrangement in special situations.
Can we file for mutual divorce soon after marriage?
You must have lived separately for at least one year before filing under section 13B. So a petition cannot be filed in the first year after separation.
Do we need separate lawyers for a mutual divorce?
The law does not require it, and some couples use one lawyer for drafting. Many prefer each spouse to take independent advice so the settlement is fair to both.
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