Under Section 13B of the Hindu Marriage Act, 1955, a mutual consent divorce begins with a joint petition filed by both spouses before the Family Court, and the decree is granted in two stages — the first motion and the second motion. The parties must have lived separately for at least one year before filing. Where the marriage was solemnised and registered under the Special Marriage Act, 1954, the equivalent route is Section 28 of that Act.
Who this applies to
This applies to a husband and wife who have both decided, freely and without pressure, to end the marriage and who have already settled the financial and custodial terms between them. It suits couples who agree on maintenance, the return of stridhan, custody of children and the division of any jointly held property. It does not apply where one spouse opposes the divorce or where the one-year separation requirement is not met, in which case a contested petition on the grounds the law allows is considered instead. If you need help deciding which route fits your facts, see our divorce lawyer page.
What Section 13B requires
Section 13B permits divorce by mutual consent on two conditions. First, the spouses must have been living separately for one year or more. Second, they must have been unable to live together and have mutually agreed that the marriage should be dissolved. Both conditions are verified by the court at the first motion. The expression "living separately" means not living as husband and wife; it does not require residence at different addresses, and the courts have read it to cover a situation where the parties share a roof but have ceased to cohabit as spouses.
The petition is a joint one. It must be signed by both spouses and supported by their affidavits. It states the date and place of marriage, the names and ages of any children, the period of separation, and the terms already agreed. If the parties have minor children, the court will not pass a decree without being satisfied that the custodial arrangement is in the welfare of the child.
The first motion
At the first motion the court records the statements of both parties and satisfies itself that consent is genuine and free. If it is satisfied, it allows the petition to proceed and adjourns the matter to the second motion.
The cooling period and the second motion
The law provides a waiting period of six months between the first and the second motion, and the second motion must ordinarily be moved within eighteen months of the first. This period exists to give the parties time to reconsider. The court, however, has the power to waive the waiting period where it is satisfied that the settlement is complete and that keeping the parties waiting would only prolong their suffering. The waiver is discretionary and is decided on the facts of each case, not as a matter of right. At the second motion both parties must confirm that consent still stands; if either withdraws consent before the decree, the petition fails.
Terms to settle before filing
- One-time or periodic maintenance and permanent alimony, and who pays whom.
- Custody, visitation and guardianship of minor children.
- Return of stridhan, jewellery and personal articles belonging to the wife.
- Division or transfer of any jointly owned property.
- Withdrawal of pending criminal or matrimonial proceedings between the parties.
These terms should be reduced to writing in the settlement and reflected in the petition so that the decree records them and they become enforceable. Our mutual divorce desk handles this drafting stage.
Documents to attach
- Original or certified marriage certificate, or proof of solemnisation.
- Joint petition signed by both spouses and separate affidavits.
- Proof of separate residence, such as address proof or a rent agreement.
- Photographs and proof of identity and address of both parties.
- Birth certificates or school records of children, where custody is settled.
- The written settlement or memorandum of terms.
Timelines
The petition can be filed once the one-year separation is complete. The first motion is usually listed within weeks of filing, subject to the court's roster. The second motion follows the six-month waiting period unless the court waives it. The decree of divorce takes effect from the date it is passed.
Common mistakes
- Filing before the one-year separation period is complete.
- Leaving maintenance or custody terms vague, only to litigate them later.
- Signing the settlement under pressure, which can later be used to attack consent.
- Not producing the marriage certificate or proof of solemnisation.
- Assuming the waiting period is waived as of right.
Can we get divorced without waiting six months?
In suitable cases, yes. The court may waive the six-month cooling period where the settlement is complete and no useful purpose would be served by delay. Whether to waive is for the court to decide on the facts.
What if one spouse changes their mind before the second motion?
The matter cannot proceed as a mutual consent divorce, because consent must subsist until the decree. The other spouse may then have to pursue a contested petition on available grounds.
Is the Special Marriage Act procedure different?
The structure is similar. For marriages under the Special Marriage Act, 1954, divorce by mutual consent is governed by Section 28 of that Act.
Where is the petition filed?
Jurisdiction lies where the marriage was solemnised, where the parties last lived together, or where the respondent resides. For couples in West Bengal, the Family Court at Kolkata and the district family courts hear these petitions.
If you are considering a mutual consent divorce in Kolkata, FileX Advocates & Legal Consultants can help you draft the joint petition and settlement, prepare the affidavits and annexures, and appear before the Family Court. You can review our family law formats or contact us. Call +91 7439811422 or message us on WhatsApp at https://wa.me/917439811422. Our office is at 14 Hare Street, Kolkata 700001.