When both spouses agree that their marriage has ended, a mutual consent divorce is usually the quickest and least stressful route. Under Section 13B of the Hindu Marriage Act, 1955 (and Section 28 of the Special Marriage Act, 1954), the spouses file a joint petition stating that they have lived separately for at least one year, that they have not been able to live together, and that they have agreed to dissolve the marriage.
The two motions
On the first motion the court records the statements of both spouses. The law then provides a period of six months before the second motion, intended as time for reflection. On the second motion, which must be moved within eighteen months of the first, the court confirms that both spouses still consent and passes the decree.
Can the six-month period be waived?
Yes. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the waiting period is directory rather than mandatory. A court may waive it where the spouses have already been separated for a long time, mediation has failed, all issues have been genuinely settled, and waiting would only prolong their difficulty.
What to agree before filing
- Permanent alimony or a one-time settlement amount, and how it will be paid
- Custody of and visitation with children, and their maintenance
- Return of jewellery, articles and other belongings
- Withdrawal of any pending cases between the parties
Consent must continue until the decree. Either spouse may withdraw consent before the second motion, so it is important that the terms are clear, fair and fully recorded.