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.
- No. The Supreme Court held in Amardeep Singh v. Harveen Kaur (2017) that the period in Section 13B(2) is directory, not mandatory. The court may waive it on an application where the one-year separation has run, reconciliation and mediation efforts have failed, the parties have settled all issues including maintenance and custody, and waiting would only prolong the distress. A waiver is discretionary, not an entitlement.
- Yes. The Supreme Court held in Sureshta Devi v. Om Prakash (1991) that consent must continue until the decree is passed and may be withdrawn by either party before then. If consent is withdrawn before the second motion, the court cannot grant a decree under Section 13B, and the petitioner has to proceed on a ground under Section 13 instead.
- Not ordinarily. Section 14 of the Hindu Marriage Act bars a divorce petition within one year of the marriage unless the court grants leave on the ground of exceptional hardship or exceptional depravity. Section 13B separately requires the spouses to have lived separately for one year or more before the petition. Both conditions have to be addressed.
- Ordinarily yes, at the first motion and the second motion, because the court records the statement of each spouse. A spouse who lives abroad can apply for permission to appear by video conference. Counsel handles every other appearance. The Family Court may also refer the parties to mediation, which they attend personally.
- Permanent alimony or a lump-sum settlement and how it is to be paid, return of stridhan and other articles, custody of any child and the other parent's access, and what happens to every pending case between the parties, including any maintenance petition, domestic violence complaint or FIR. Both sides ordinarily file affidavits of assets and liabilities, following Rajnesh v. Neha (2020). Vague terms are the commonest cause of later disputes.
- The route is similar but the statute differs. Section 28 of the Special Marriage Act, 1954 governs mutual consent divorce for marriages registered under that Act, Section 10A of the Indian Divorce Act, 1869 for Christians, and Section 32B of the Parsi Marriage and Divorce Act, 1936 for Parsis. Muslim law has its own routes. Which Act applies depends on the religion of the parties and, for registered marriages, the Act under which the marriage was registered.
- A decree passed on consent is rarely challenged, and parties usually give an undertaking not to appeal. Under Section 15 of the Hindu Marriage Act, remarriage is permitted once there is no right of appeal, the time for appeal has expired without one being filed, or any appeal has been dismissed. We advise on the timing in each case.