The provisions for divorce by way of mutual consent are contained
under Section 13 B of the Hindu Marriage Act. This article aims at providing
information to the litigant/layman who is seeking information on the legal
aspects of mutual consent divorce and also explains in detail the procedure
involved in obtaining a decree of divorce by way of mutual consent.
How to file mutual consent divorce?
A joint petition by both husband and wife has to be filed under Section 13-B of
Hindu Marriage Act before the Family Court having jurisdiction, seeking grant of
decree of divorce by mutual consent.
Who can file a divorce by mutual consent?
Both the parties to the marriage i.e. the husband and wife can file a joint
petition under Section 13-B of the Hindu Marriage Act for grant of decree of
divorce by mutual consent. The conditions for filing divorce and getting a
divorce by mutual consent are expressly mentioned in the act and reproduced
13B. Divorce by mutual consent.
Subject to the provisions of this Act a petition for dissolution of marriage by
a decree of divorce may be presented to the district court by both the parties
to marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the
ground that they have been living separately for 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.'
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later than eighteen months after the said date, if the petition is not withdrawn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
solemnized and that the averments in the petition are true, pass a decree of
divorce declaring the marriage to be dissolved with effect from the date of the
What points to incorporate in the joint mutual consent divorce petition?
Best Divorce Lawyers should consider incorporating the following legal points
while drafting a divorce petition:
- The parties have completely separated from each other as they were
unable to pull together on account of lack of understanding and
temperamental differences between them. Several meetings have already taken
place between the parties with the due intervention of common relatives,
however, no fruitful results could be obtained
- The marriage has now broken down irretrievably and irreparably.
- The parties have not lived together as husband and wife for more than one year
and since then they have been living separately.
- The parties have voluntarily arrived at an amicable settlement resolving their
disputes and deciding to part ways.
- One-time settlement/agreement in full and final.
- Nothing remains due about any item/Sridhar, maintenance-past present and
- Mutually agreed by both the parties that if any complaint/case/application is
pending before any competent court of law/competent authority, which is not in
the knowledge of either of the parties or has escaped their attention shall also
be withdrawn by them.
- The consent for filing the present petition has not been obtained by the parties
by force, fraud, inducement, or undue influence of any kind.
- The petition has not been presented in collusion with the parties.
Where can a petition seeking mutual consent divorce be filed?
Jurisdiction of Court for filing Divorce Petition: Section 19 of the HMA
contains provisions regarding the jurisdiction of the court where a petition for
filing divorce can be presented.
19. Court to which petition shall be presented.-Every petition under this Act
shall be presented to the District Court within the local limits of whose
ordinary original civil jurisdiction:
- The marriage was solemnized, or
- The respondent, at the time of the presentation of the petition, resides,
- The parties to the marriage last resided together, or
- In case the wife is the petitioner, where she is residing on the date of
presentation of the petition; or]
- The petitioner is residing at the time of the presentation of the petition,
in a case where the respondent is at that time, residing outside the territories
to which this Act extends, or has not been heard of as being alive for seven
years or more by those persons who would naturally have heard of him if he were
The petition under Section 13 B can be presented before the Family Court of a
district where either the marriage was solemnized, the parties to the marriage
last resided together, or at the place where the wife is residing.
What are the Stages/ Procedure in Mutual Consent Divorce cases:
Steps involved before the filing of the petition:
- Step 1: One-year separation period before the filing of the petition. However,
in case of exceptional hardships, this period can be condoned by the court by
moving appropriate applications.
- Step 2: Drafting of a settlement agreement between husband and wife
Procedure/stages in Court proceedings:
- Step 3: Filing of the joint petition under Section 13 B of the Hindu Marriage
Act along with affidavits of both husband and wife.
- Step 4: Recording of first motion statement
- Step 5: Cooling off period of 6 months. (Application for waiving off
this cooling period can be moved in certain cases)
- Step 6: Recording of Second Motion statement
- Step 7: Decree of Divorce
When can divorced persons remarry?
Section 15 of the Hindu Marriage Act expressly contains the provisions regarding
The section is reproduced herein below:
15. Divorced persons when may marry again:
When a marriage has been dissolved
by a decree of
divorce and either there is no right of appeal against the decree or if there
is such a right of appeal, the
time for appealing has expired without an appeal having been presented, or an
appeal has been presented
but has been dismissed, it shall be lawful for either party to the marriage to
As per the provisions of this section, after obtaining the decree of divorce the
parties can remarry after lapse of the limitation period for filing an appeal
against the divorce decree and in a case where such appeal is filed, after the
dismissal of such appeal. The limitation period for filing an appeal to High
Court in divorce cases is 90 days from the date of decree or order.
Benefits of taking Divorce by way of Mutual Consent:
- Parties do not get involved in unnecessary litigation;
- Speedy and effective remedy;
- Cost-effective and hassle-free litigation;
- Autonomy on conditions for arriving at a settlement;
- No bitterness and exploitation of parties to the litigation.
- Bare Act source: The Hindu Marriage Act 1955