Mutual Consent Divorce in India: Process, Timeline and the Six-Month Waiting Period

When both spouses have decided that the marriage cannot continue, a divorce by mutual consent is usually the quickest and least adversarial route. Neither side has to prove cruelty, desertion or any other fault. The court's role is to confirm that both consents are real, free and still in place when the decree is passed.

This article explains the procedure under Section 13B of the Hindu Marriage Act, 1955. The Special Marriage Act, 1954 (Section 28) has an almost identical framework, and other personal laws have their own provisions.

Who can file

A joint petition can be filed when:

• the spouses have been living separately for at least one year before filing. "Living separately" means not living as husband and wife. Courts have accepted that couples can live under the same roof and still be "separated" for this purpose;
• they have not been able to live together; and
• they have mutually agreed that the marriage should be dissolved.

The one-year separation is a condition for filing. It is not the same as the six-month waiting period discussed below.

Where to file

The petition goes before the Family Court (or the District Court where no Family Court exists) within whose limits:

• the marriage was solemnised;
• the respondent resides;
• the parties last resided together; or
• the wife resides, if she is the petitioner.

In a joint petition, either spouse's place of residence usually works in practice, which gives couples living in different cities some flexibility.

The settlement comes first

Most of the real work happens before anything is filed. The spouses normally sign a settlement agreement or terms of consent covering:

• permanent alimony or a one-time settlement amount, and how it is paid (often in instalments tied to the two motions);
• return of stridhan, jewellery and other belongings;
• custody of and visitation with children, and child support;
• withdrawal of any pending cases between the parties, such as maintenance, domestic violence or criminal complaints.

A vague or one-sided settlement is the most common reason these divorces break down midway, so the terms deserve careful drafting.

First motion

Both spouses file the joint petition with the settlement terms and appear before the court. Their statements are recorded. Many Family Courts first refer the couple to mediation or counselling to check whether reconciliation is possible. If it isn't, the court records the first motion.

The six-month period

Section 13B(2) says the second motion can be moved no earlier than six months and no later than eighteen months after the first motion. The gap is meant to give the couple time to reconsider.

In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that this period is directory, not mandatory. A court can waive it if:

• the one-year statutory separation period has already passed, along with any time spent in earlier litigation;
• all efforts at mediation or reconciliation have failed;
• the parties have genuinely settled every issue, including alimony and custody; and
• waiting longer would only prolong their agony.

An application for waiver can be made one week after the first motion, with reasons. Whether to grant it is up to the court, and the result varies from case to case.

Separately, in Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench confirmed that the Supreme Court itself can grant divorce under Article 142, including by dispensing with the waiting period, where the marriage has irretrievably broken down. That power belongs only to the Supreme Court. Family Courts continue to apply Section 13B.

Second motion and decree

At the second motion, both parties again confirm their consent before the court. If the court is satisfied, it passes a decree of divorce. The marriage is dissolved from the date of the decree.

Can one spouse withdraw consent?

Yes. Consent must exist at the time of the second motion, not just when the petition was filed. A spouse who withdraws consent before the decree ends the mutual consent route, although the other spouse can still file a contested petition on available grounds. If money has already been paid under the settlement, the agreement should say what happens to it if consent is withdrawn.

Can the parties appear by video?

Courts regularly allow a spouse living abroad or in another city to appear by video conference, particularly for the second motion. Some courts also accept a duly authorised family member for certain steps, but personal confirmation of consent is usually still required.

Typical timeline

A mutual consent divorce with no waiver typically ends within seven to eight months of filing. With a waiver, it can end much sooner.

Key takeaways

• Separation of at least one year is needed before filing.
• The six-month cooling-off period can be waived in suitable cases.
• The settlement terms matter more than the petition itself, so get them right before filing.
• Either party can withdraw consent until the decree is passed.