Where a husband and wife both want a divorce, Section 13B of the Hindu Marriage Act, 1955 provides for divorce by mutual consent. They file a joint petition after living separately for at least one year. The court records their statements on the first motion, and the second motion is made not earlier than six months, and not later than eighteen months, after the petition was filed.
The six-month period can be waived
In Amardeep Singh v Harveen Kaur (2017), the Supreme Court held that the six-month period is not mandatory, and the family court may waive it where:
- the six months, in addition to the one year of separation, have already passed before the first motion, counting the time the parties have lived apart;
- all efforts at mediation and reconciliation have failed;
- the parties have genuinely settled all their differences, including alimony and the custody of children; and
- waiting would only prolong their suffering.
An application for waiver can be made after the first motion, and the court decides it on the facts. Where it is granted, a mutual divorce can be completed within weeks.
Settle everything first
A mutual divorce works only when every issue is settled: permanent alimony and how it is paid, the custody of children and visitation, the return of jewellery and belongings, and the withdrawal of any other cases between the parties, such as maintenance, domestic violence or cruelty cases. These terms are best written into a settlement before the first motion.
When one spouse lives abroad
Family courts often allow a spouse abroad to appear by video conference, and the statements can sometimes be recorded that way. The Supreme Court in Shilpa Sailesh v Varun Sreenivasan (2023) also confirmed its own power, under Article 142, to dissolve a marriage that has irretrievably broken down. Our matrimonial and family practice handles mutual and contested divorce in Gurugram and Delhi.
This article gives general information on the law as it stood when it was written. It is not legal advice; every matter turns on its own facts.