Now days, the instances are seen where both the husband and the wife are not
happy in their marital relationship. Though, they want to dissolve their
marriage, yet they feel uncomfortable to do so. This uneasiness may be either
due to societal pressure or due to negligence of procedure relating to divorce
by mutual consent. If your case is of latter, then you are at the right place.
The following article seeks to elaborate the procedure and manner of obtaining
divorce by mutual consent.
What is divorce by Mutual consent?
- Divorce by mutual consent' in simple terms means repudiation or dissolution of
the marriage tie mutually i.e with the consent of both the husband and the wife.
- Consent plays a major role in such type of divorce petitions as thus the
framing of unnecessary allegations can be avoided in such cases.
- Both Hindus and Muslims can obtain divorce through this, a judicial decree is
required in case of Hindus, while no such requirement is necessary in case of
Muslims as there marriage is a contract.
Divorce by mutual consent in Hindus
After the Marriage law Amendment Act, 1976, section 13[B] was inserted in
Hindu Marriage Act, 1955. This Amendment introduced the concept of divorce by
mutual consent in Hindus. Let's understand its process by answering the
Who has to file the petition?
As per section 13[b][i] of the Hindu Marriage Act,1955, the petition for
divorce has to be presented by both the parties [ Husband and the wife]
On what ground the petition is filed?
The petition states that both the parties have been living separately for a
period of 1 year or more and they have not been able to live amicably together
and thus they mutually decide to dissolve their marriage. This is a must
It is pertinent to note that the expression 'living separately'
just physical separation, but it includes psychological separation i.e no
intention to live as husband and wife, the same was expressed by the honourable
supreme court in the case of Sureshtha Devi v. Omprakash
Where to file the petition?
As per section 13[B] read with section 19 of the 1955 Act, the petition has
to be filed at the District Court where marriage was solemnised or where the
parties last resided.
When to file the petition?
As stated the petition has to state that the parties have been living separately
since 1 year or more, thus the minimum requirement is 1 year of separation.
Moreover, as per section 14 of the Act, 1955, the divorce petition can not be
presented within 1 year of marriage except in case of ' exceptional depravity
and hardships' which depends upon the facts of the case, however, the petition
for judicial separation can be filed within 1 year of marriage on any of the
grounds mentioned under section 13 of the Act , 1955.
Apart from all this, it is important to know that the procedure to obtain
divorce by mutual consent involve two types of motion as stated under section
Motion1: in this motion the petition for divorce is presented before the court
stating the ground of divorce after 1 year of separation.
Motion 2: this motion comes into play after 6 months but before 18 months of the
first motion. This time period is known as 'cooling off period', it offers
the opportunity of reconciliation to the parties, in case the reconciliation
occurs the divorce could be averted. In case reconciliation did not happen, the
parties can come and claim divorce. After hearing both the parties and making
appropriate inquiries , the court would grant divorce.
Thus, the parties are required not to cohabit during this 18 months tenure[
1year+6 months], in order to successfully claim divorce in second motion.
Can the Cooling off period be waved off?
Yes! the cooling off period can be waved off by the courts if they find that the
marriage has been irretrievably broken. The Supreme court in 2017 in the case
of Amardeep Singh V. Harveen Kaur
held that section 13[B] is directory in
nature as compared to section 13[B] which is mandatory in nature and thus
where it is found that the marriage has been irretrievably broken down then the
marriage could be dissolved even before observing the cooling off period.
In the said case , the husband and the wife together by mutual consent filed a
petition for divorce stating that they were living separately since 8 years. The
court observed that if the reconciliation did not happen in 8 years there are
hardly any possibilities that it would happen in 6 months. The court thus ,
waived off the cooling off period by invoking article 142 of the Constitution.
Can the divorce petition be withdrawn unilaterally?
Yes! the divorce petition can be withdrawn either unilaterally or mutually within
cooling off period and even after that but before presentation of second motion
as per the ruling of Supreme Court in the case of Sureshtha devi V.
 and Hitesh Bhatnagar V. Deepa Bhatnagar
Divorce by mutual consent in Muslims
As we know, marriage in Muslims is regarded as a Contract which involves, ijab [offer]
and qubul[ acceptance of offer] with consideration[ mehr].
There is a concept of Mubarat which is similar to the concept of divorce by
mutual consent . In this form of divorce, the offer of Mubarat is made from the
either side and if it is accepted by the other side , the irrevocable divorce is
obtained mutually without any judicial intervention. Thereafter, the wife has to
undergo iddat.Shia law explicitly recognise this form of divorce[talaq] .
Thus, it can be seen that , divorce by mutual consent is a tussle free and
hustle free method of obtaining divorce and a new journey can be started without
- AIR 1992 SC 1904
- AIR 1994 SC 1904
- AIR 2011 SC 1637