Matrimonial Law · Divorce

Mutual Consent Divorce in Delhi: Process, Timeline and the Six-Month Waiver

A mutual consent divorce is the quickest lawful way to end a marriage, but it is not automatic. The court must be satisfied at two separate hearings that both spouses still consent and that every issue between them has been settled. This note sets out the steps, the timing, and when the six-month wait can be waived.

The Law

What Section 13B requires

For Hindu, Buddhist, Jain and Sikh couples, mutual consent divorce is governed by Section 13B of the Hindu Marriage Act, 1955. A joint petition may be presented to the Family Court by both spouses on the ground that they have been living separately for a period of one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved.

Two points are often misunderstood. The one-year separation is about how the spouses have lived, not whether they live in different cities; spouses can live separately under one roof. And Section 14 of the Act separately bars any divorce petition within one year of the marriage unless the court grants leave for exceptional hardship or exceptional depravity. Our divorce lawyer page covers contested divorce as well.

Step One

The settlement and the joint petition

The petition is only as good as the settlement behind it. Before filing, the spouses should agree, in writing, on permanent alimony or a lump sum and the schedule of payment, return of stridhan and other articles, custody of any child and the other parent's access, and what happens to every pending case between them.

Following Rajnesh v. Neha (2020), each side ordinarily files an affidavit of assets and liabilities, and an inaccurate affidavit can harm the party who filed it. The petition is filed in the Family Court with jurisdiction under Section 19 of the Act, for example where the marriage was solemnised or where the parties last lived together.

Step Two

The first motion

Both spouses appear before the Family Court, which records their statements on oath. The court checks that the consent is free, that the one-year separation is made out, and that the settlement is understood. It may refer the parties to mediation. If satisfied, it records the statements and passes the first motion order.

A spouse living abroad can apply for permission to appear by video conference. Counsel can attend every other date, but the statements themselves must come from the parties.

Step Three

The six-month period, and the eighteen-month limit

Section 13B(2) provides that, if the petition is not withdrawn in the meantime, the parties may move the court on the second motion not earlier than six months after the petition was presented, and not later than eighteen months. If the second motion is not moved within eighteen months, the petition lapses and the process has to be started again.

The period is meant to give the spouses time to reconsider. It is not a formality. Consent must still exist at the second motion, and either spouse may withdraw it at any time before the decree, as the Supreme Court held in Sureshta Devi v. Om Prakash (1991). If consent is withdrawn, the court cannot pass a decree under Section 13B.

The Waiver

When the six months can be waived

In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held that the six-month period is directory and may be waived by the Family Court on an application. The conditions it set out are that the statutory separation period has run, that attempts at mediation and reconciliation have failed and there is no real prospect of them succeeding, that the parties have genuinely settled all their issues including alimony, custody and pending cases, and that waiting would only prolong their suffering.

The Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023) later considered the same area and held that the Supreme Court may, under Article 142 of the Constitution, dissolve a marriage that has broken down beyond repair, and that the waiting period can be waived in suitable cases. A waiver is always a matter of the court's discretion. The application should be supported by the signed settlement, the first-motion record and a short account of why further waiting serves no purpose.

Step Four

The second motion and the decree

At the second motion both spouses again appear and confirm their consent. If the court is satisfied that the marriage was solemnised, the averments are true and the consent subsists, it passes the decree of divorce. The terms of the settlement are ordinarily made part of the decree, so they can be enforced.

Under Section 15 of the Act, either party may remarry once there is no right of appeal, the time for appeal has expired without an appeal being filed, or any appeal has been dismissed. In a consent decree the parties usually give an undertaking not to appeal.

Practical Points

Documents, timing and what goes wrong

Expect to produce the marriage certificate or proof of marriage, identity and address proof for both spouses, photographs, income tax returns, proof of the separation, details of any children, and the settlement. The most common delays are missing or inconsistent documents at the first hearing, a spouse abroad who cannot attend, and a settlement that does not deal clearly with custody or with pending cases.

Where the marriage has also produced criminal proceedings, the divorce settlement is usually the basis for ending them as well. A matrimonial FIR under Section 85 BNS (formerly Section 498A IPC) can be quashed by the High Court under Section 528 BNSS on a genuine settlement; see our 498A and FIR quashing pages. If consent is withdrawn, the alternative is a contested petition on a ground under Section 13.

Questions

Frequently asked

  • Without a waiver, the second motion cannot be heard until six months after the petition is presented, so the realistic minimum is a little over six months and many cases take longer because of the court's list. With a waiver under Amardeep Singh v. Harveen Kaur, the second motion can be heard sooner. We do not give a fixed date, because it depends on the court, the date the motions are listed, and whether every document is in order at the first hearing.

Consultation

Considering a mutual consent divorce?

A clear settlement and complete papers at the first motion save months. Speak to us before the petition is filed.

Call