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Mutual Consent Divorce in India: Section 13B Explained

When both spouses agree the marriage is over, Indian law offers a quieter route: divorce by mutual consent. Here is how it works, how long it can take, and when the six-month waiting period can be waived.

By TrueSaath · published 2026-10-22 · checked October 2026 · general information, not legal advice

What mutual consent divorce is

Divorce by mutual consent lets a couple end the marriage without either of them having to prove fault. Nobody has to establish cruelty, desertion or adultery. Both spouses tell the court, together, that the marriage cannot continue and that they want it dissolved.

For Hindus, Buddhists, Jains and Sikhs the provision is section 13B of the Hindu Marriage Act, 1955 (HMA). For marriages under the Special Marriage Act, 1954 (SMA), including most inter-faith and court marriages, the matching provision is section 28 of the SMA. The two are worded in almost the same way. Other communities have their own laws; see our guides to Christian and Muslim marriage law.

The three conditions in the Act

Section 13B(1) asks for a joint petition stating that:

• the spouses 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 always mean living in different houses. Courts have accepted that a couple can be separated in the sense of no longer living as husband and wife, even under one roof, but this depends on the facts, so explain your situation to your lawyer.

The two motions and the waiting period

The process has two stages, often called the first and second motion.

• First motion: both spouses file the joint petition in the family court (or district court where there is no family court) and usually appear in person. The court records their statements.
• Waiting period: section 13B(2) says the second motion is to be made not earlier than six months after the petition was presented, and not later than eighteen months after it. This six-month gap is often called the cooling-off period.
• Second motion: both spouses confirm that they still consent. If the petition has not been withdrawn and the court is satisfied, after hearing them and making any inquiry it thinks fit, that the averments are true, it passes a decree of divorce.

Either spouse can withdraw consent before the decree. If that happens, the court cannot grant a mutual consent divorce on the petition.

Can the six-month wait be waived?

Yes, in suitable cases. In Amardeep Singh v. Harveen Kaur (2017), 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 one-year separation and the six-month period are already over before the first motion;
• attempts at mediation or reconciliation have failed and there is no real chance of success;
• the spouses have genuinely settled their differences, including alimony and child custody; and
• the waiting period would only prolong their agony.

The Court said an application for waiver can be made a week after the first motion. In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench confirmed that the waiting period can be dispensed with on these conditions, and held that the Supreme Court itself can dissolve a marriage under Article 142 of the Constitution where it is satisfied the marriage has irretrievably broken down. That power belongs to the Supreme Court. Family courts still work within section 13B and the waiver principles.

The settlement is the real work

Most of the effort in a mutual consent divorce goes into the terms, not the court hearings. Couples usually record in writing:

• permanent alimony or a one-time settlement, and how it will be paid (see maintenance and alimony);
• custody, visitation and support for children (see child custody after divorce);
• return of stridhan, jewellery and personal belongings;
• division of jointly held property, loans and bank accounts;
• withdrawal of other pending cases between the parties, if any.

Many family courts send the couple to court-annexed mediation, which can help turn a difficult conversation into a written agreement.

Documents commonly asked for

There is no single national list, and family courts differ, but lawyers usually prepare:

• proof of marriage, such as a marriage certificate or wedding photographs and invitation;
• address and identity proof of both spouses;
• details of where and since when the spouses have lived separately;
• the signed settlement terms;
• details of children, income and assets where maintenance or custody is involved.

Where to file

A petition under the HMA can be filed in the court within whose limits the marriage was solemnised, where the respondent lives, or where the couple last lived together, among other options set out in section 19 of the Act. In cities with a family court, that court hears it.

This page is general information, not legal advice. Laws and procedures change, and courts may read them differently in your facts. For your own situation, speak to a lawyer, or get free legal aid through your District Legal Services Authority or NALSA's toll-free legal aid helpline 15100. More guides are on our marriage law hub.

Sources

Checked in October 2026. Laws, rules and court positions change; confirm the current position before acting on it.

• Hindu Marriage Act, 1955 (India Code)
• Special Marriage Act, 1954 (India Code)
• Supreme Court: Shilpa Sailesh v. Varun Sreenivasan, judgment of 1 May 2023
• SC Observer: divorce under Article 142, judgment in plain English
• Mondaq: Amardeep Singh v. Harveen Kaur, cooling-off period held directory
• NALSA: free legal aid and helpline 15100

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