Mutual Consent Divorce in India: Steps, Waiting Period, Settlement

A mutual consent divorce in India is granted when husband and wife file a joint petition saying they have lived separately for at least a year, cannot live together and have agreed to end the marriage. The court hears them twice. The second hearing, called the second motion, can normally be made no earlier than six months and no later than eighteen months after the petition is filed. The six-month gap is not absolute: since 2017 the Supreme Court has allowed family courts to waive it where the conditions it laid down are met.

In practice the court process is the easy part. What decides how smoothly a mutual divorce goes is the settlement: alimony, the return of jewellery and gifts, custody of children, and the withdrawal of any cases already filed. This guide covers the law, the steps, and what the settlement documents need to say.

Which law applies to your marriage

The provision depends on the law under which the marriage took place or is governed:

• Hindus, Buddhists, Jains and Sikhs married under the Hindu Marriage Act, 1955: Section 13B.
• Marriages solemnised or registered under the Special Marriage Act, 1954, including inter-faith marriages: Section 28, which has the same structure of one year apart and a second motion between six and eighteen months.
• Christians under the Divorce Act, 1869: Section 10A, which requires the couple to have lived separately for two years or more, with the same six to eighteen month window for the second motion.
• Muslim and Parsi marriages are governed by their own personal laws and statutes, which are outside the scope of this guide.

The rest of this guide uses the Hindu Marriage Act, because it covers most petitions, but the same steps broadly apply under the Special Marriage Act.

What Section 13B requires

On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce

Section 13B(2), Hindu Marriage Act, 1955

Sub-section (1) requires that the petition be presented by both spouses together on three grounds: 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 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. A couple under the same roof because of circumstances can still be living separately, if they have stopped performing marital obligations for at least a year before filing.

The steps from petition to decree

1. Agree on the settlement terms first: alimony or a lump sum, stridhan and gifts, the matrimonial home, children, and pending cases. Put them in writing before anything is filed.
2. Prepare the joint petition, signed by both spouses, with marriage details, the date of separation, details of children, and the agreed terms or a statement that they are annexed.
3. File it in the family court (or the district court where there is no family court) with jurisdiction. Under Section 19 of the Act this is generally where the marriage was solemnised, where the respondent lives, where the couple last lived together, or where the wife lives if she is the petitioner.
4. Appear together for the first motion. The court records both statements, usually after an attempt at mediation or counselling.
5. Wait for the statutory period, or apply for waiver of the six-month period if the conditions below are met.
6. Appear again for the second motion within eighteen months of filing. Both spouses confirm that their consent continues.
7. The court passes the decree of divorce, and the parties carry out the remaining settlement terms in the sequence agreed.

You can prepare the joint mutual consent divorce petition from our template, though most family courts expect it to be filed through an advocate and verified in the court's own format. LegalFirms also has a short explainer on the court procedure for mutual divorce.

Documents to keep ready

Family courts differ in what they ask for, but the following are commonly needed with a joint petition, so collect them before the filing date:

• Proof of marriage, such as the marriage certificate, wedding invitation or photographs.
• Proof of address and identity of both spouses, which also supports the court's jurisdiction.
• Details of the date from which the spouses have been living separately, and how.
• Birth certificates of children and details of their schooling, where custody terms are part of the settlement.
• Copies of any pending cases between the spouses, with case numbers and court names.
• The signed settlement terms, and proof of any payment already made under them.

Both spouses usually file affidavits supporting the petition. Make sure the dates of marriage and separation are consistent across the petition, the affidavits and the settlement, because a mismatch invites questions at the first motion.

Waiving the six-month waiting period

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. A court may waive it after considering whether:

• the six months, in addition to the one year of separation under Section 13B(1), has already passed before the first motion itself;
• all efforts at mediation or conciliation to reunite the parties have failed and further efforts are unlikely to succeed;
• the parties have genuinely settled their differences, including alimony, custody of children and any other pending issues; and
• the waiting period will only prolong their agony.

The Court said the waiver application can be filed one week after the first motion, giving reasons, and that granting it is within the court's discretion. It also allowed courts to use video conferencing and, where a party genuinely cannot appear, representation through close relations such as parents or siblings. In practice, a waiver application is much stronger when the settlement is already complete or substantially performed.

Divorce through the Supreme Court under Article 142

In Shilpa Sailesh v Varun Sreenivasan (2023), a five-judge Constitution Bench held that the Supreme Court, using its power under Article 142(1) of the Constitution to do complete justice, can grant a mutual consent divorce on a settlement without requiring the second motion procedure, and can quash connected cases, including criminal proceedings. It also held that the Supreme Court can dissolve a marriage on irretrievable breakdown even when one spouse opposes it.

This power belongs only to the Supreme Court and is used in matters already before it, often transfer petitions. The Bench made clear that a spouse cannot file a writ petition directly in the Supreme Court or a High Court asking for divorce on this ground. For most couples, the family court route remains the way to a decree.

What the settlement agreement should cover

The settlement is a contract between the spouses, and the court records it. A clear divorce settlement agreement should deal with:

• Permanent alimony: the total amount, whether it is paid in one go or instalments, and which instalment falls due at which stage (for example, part at the first motion and the balance at the second).
• Stridhan, jewellery and gifts: a list of items, who keeps what, and when they are handed over.
• Property: who keeps the matrimonial home, transfer of any jointly owned property, and who repays any joint loan.
• Children: custody, visitation, school and medical decisions, and maintenance for the child, which is the child's right and should be stated separately from alimony.
• Pending cases: a promise to withdraw or not oppose the closure of maintenance, domestic violence, restitution or criminal cases, with the stage at which each step happens.
• Full and final settlement: a statement that no further claims will be made, other than enforcement of the agreement itself.

Where there are children, a separate mutual child custody agreement makes the parenting arrangement easier to read and to change later. If the settlement transfers a flat or land from one spouse to the other, take advice on whether a separate registered deed is needed and what stamp duty applies, because registration and stamp rules for property transfers differ by State and a recital in the settlement may not be enough to change the land records. Custody terms are always subject to the court's view of the child's welfare, a theme covered in our planned guide on child custody and guardianship.

After the decree

Collect a certified copy of the decree and keep it safe, because banks, passport offices, employers and a future marriage registrar will ask for it. Update your name, address and nominee details where needed, and close joint bank accounts and lockers as the settlement provides.

On remarriage, Section 15 of the Hindu Marriage Act says it is lawful for either party to marry again once there is no right of appeal against the decree, or the time for appeal has expired without an appeal, or an appeal has been dismissed. Section 28 of the Act gives ninety days from the decree for an appeal. Whether an appeal lies against a decree passed on consent is a question your lawyer can answer for your court, but many people simply wait out the appeal period before remarrying.

If a spouse fails to pay alimony or hand over property as agreed after the decree, the agreement and the court's order recording it can be enforced, which is why the payment schedule should be part of the order and not just a side letter. Maintenance claims that were settled should be recorded as settled; for the background on those claims, see our planned guide on maintenance for wife and children under BNSS Section 144.

Closing criminal and other cases

Many mutual divorces follow years of litigation. Civil cases, such as maintenance or domestic violence applications, can usually be withdrawn or disposed of in terms of the settlement. A criminal case for cruelty under Section 85 of the Bharatiya Nyaya Sanhita (which replaced Section 498A of the IPC) is different: the complainant cannot simply withdraw it, and closing it on settlement usually needs a High Court petition under Section 528 of the BNSS, the old Section 482 CrPC power. Our planned guide on quashing an FIR in the High Court explains that process.

Because several courts may be involved, and because alimony and property terms have tax and stamp duty consequences that differ by State, most couples are better off having a family lawyer check the agreement before it is signed, even when both sides are cooperating.