When a marriage has ended in all but name, divorce by mutual consent allows both spouses to bring it to a close without either having to prove fault against the other. Section 13B of the Hindu Marriage Act, 1955 sets out the procedure. It applies to marriages governed by that Act; similar, though not identical, provisions exist under the Special Marriage Act, 1954 and other personal laws.
Mutual consent does not make the process a formality. The court must be satisfied that consent is genuine, freely given and continuing, and that the terms on which the parties are parting have been settled.
The conditions
Under Section 13B(1), both spouses together present a petition to the district court (or, where one has been established, the Family Court) stating that:
- they 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.
Living separately does not necessarily mean living in different houses. In Sureshta Devi v. Om Prakash (1991), the Supreme Court explained that it means not living as husband and wife. Separately, Section 14 of the Act provides that, ordinarily, no petition for divorce may be presented within one year of the marriage, unless the court grants leave on the ground of exceptional hardship or exceptional depravity.
First motion, waiting period, second motion
The joint petition is known as the first motion. The parties ordinarily appear before the court, their statements are recorded, and the court may refer them to mediation or counselling.
Section 13B(2) then provides for a second motion, made not earlier than six months and not later than eighteen months after the petition was presented. If the petition has not been withdrawn in the meantime, the court hears the parties, makes such inquiry as it thinks fit and, once satisfied that the averments in the petition are true, passes a decree of divorce.
Either spouse may withdraw consent at any time before the decree. Sureshta Devi held that consent must continue until the decree is passed, and the Supreme Court has followed that view since. Where withdrawal follows a settlement recorded before the court, particularly one that includes undertakings to the court, it can carry consequences. That is one reason settlement terms should be drafted with care.
When the six-month period may be waived
In Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, the Supreme Court held that the six-month period in Section 13B(2) is directory, not mandatory. Its purpose is to give the parties time to reconsider, not to prolong a marriage that has clearly ended. The court hearing the petition may waive the period after considering whether:
- the six months, together with the one year of separation required by Section 13B(1), had already passed before the first motion;
- all efforts at mediation and conciliation have failed and there is no likelihood of success in further efforts;
- the parties have genuinely settled their differences, including alimony and the custody of any child; and
- the waiting period would only prolong their agony.
The Court said that an application for waiver may be filed one week after the first motion, giving reasons. It also recognised that courts may allow appearance by video conferencing and, for valid reasons, representation through close relatives such as parents or siblings. Waiver remains a matter for the court's discretion on the facts of each case; it is not available as of right.
Shilpa Sailesh v. Varun Sreenivasan (2023)
On 1 May 2023, a five-judge Constitution Bench of the Supreme Court decided Shilpa Sailesh v. Varun Sreenivasan. It held that the Supreme Court, in exercise of its power under Article 142 of the Constitution to do complete justice, may dispense with the six-month period where the marriage has irretrievably broken down. In doing so, it is to be guided by the Amardeep Singh considerations and must be satisfied that the settlement between the parties is genuine and free from coercion.
The Court went further. It held that the Supreme Court may, under Article 142, dissolve a marriage on the ground of irretrievable breakdown even where one spouse does not consent. That is a discretion to be exercised with great care, not a right, and the Court listed relevant factors: how long the parties lived together, how long they have lived apart, the nature of the allegations made, the litigation between them and the attempts made at settlement.
Two limits are worth noting. The Article 142 power belongs to the Supreme Court alone; Family Courts and High Courts do not exercise it, though they continue to apply Amardeep Singh when asked to waive the six-month period. And a party cannot file a writ petition directly in the Supreme Court asking it to dissolve a marriage on this ground.
The one-year separation requirement
Whether the one year of separation required by Section 13B(1) can also be relaxed has been debated in the High Courts. In December 2025, a Full Bench of the Delhi High Court held in Shiksha Kumari v. Santosh Kumar that it can, by applying the proviso to Section 14(1) in cases of exceptional hardship or exceptional depravity, and that the two waivers are to be considered independently of each other. The decision binds courts in Delhi. Elsewhere, including in Uttar Pradesh, it is persuasive, and practice may vary.
What the settlement should cover
Most of the work in a mutual consent divorce lies in the settlement, which is usually recorded in writing and placed before the court. It should deal clearly and completely with:
- permanent alimony or a lump-sum payment, and the schedule of payment, which is often linked to the stages of the proceedings;
- the return of stridhan, jewellery and personal belongings;
- the custody of, and access to, any children, and their maintenance and education;
- jointly held property and joint loans; and
- the withdrawal or closure of other proceedings between the parties, such as claims for maintenance, proceedings under the domestic violence law, or criminal complaints.
Criminal proceedings arising from a matrimonial dispute, including complaints of cruelty now dealt with under Sections 85 and 86 of the Bharatiya Nyaya Sanhita, 2023, cannot always simply be withdrawn by the complainant. Where an offence is not compoundable, the parties usually approach the High Court to have the proceedings quashed under its inherent powers (now preserved by Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, formerly Section 482 of the Code of Criminal Procedure), which courts have exercised where a genuine settlement has been reached. The settlement should provide for this sequence so that neither side is left exposed.
Practical points
- Each spouse should take independent advice. One advocate cannot properly act for both sides.
- Keep the marriage certificate or other proof of the marriage, evidence of the date from which you have lived separately, and documents relating to income and assets.
- If the waiting period is not waived, calendar the eighteen-month outer limit for the second motion.
- If either spouse lives abroad or in another city, ask early whether the court will permit appearance by video conferencing.