Where both spouses agree that the marriage should end, they may jointly seek divorce by mutual consent. For marriages governed by the Hindu Marriage Act, 1955, this is provided for in Section 13B. A similar provision exists in Section 28 of the Special Marriage Act, 1954.
Basic requirements
- The spouses have been living separately for a period of at least one year.
- They have not been able to live together.
- They have mutually agreed that the marriage should be dissolved.
The process
- First motion: a joint petition is filed before the Family Court and the statements of both parties are recorded.
- Waiting period: the law provides for a period of six months before the second motion, to allow time for reconsideration.
- Second motion: the parties confirm their consent, and the court may then pass a decree of divorce.
In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Supreme Court held that the six-month waiting period is not mandatory and may be waived by the court in appropriate cases, for example where all issues have been settled and there is no possibility of reconciliation.
Settling the terms
A mutual consent petition usually records the terms the parties have agreed on, such as alimony or maintenance, custody of and access to children, and the return of stridhan and other belongings. Clear terms help avoid disputes later.
Key judgment
- Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.
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