Mutual Consent Divorce Procedure in India, Step by Step

A mutual consent divorce in India is done in two stages: both spouses file a joint petition (the first motion), and after a waiting period of at least six months and not more than eighteen months, they appear again and the court passes the decree (the second motion). For Hindus, Buddhists, Sikhs and Jains the law is section 13B of the Hindu Marriage Act, 1955; for marriages registered under the Special Marriage Act, 1954 it is section 28. Not legal advice: this guide is general information, and a lawyer should check the facts of your case before anything is filed.

Who can file, and when

Both spouses must agree that the marriage should end, and they must have been living separately for a period of one year or more immediately before the petition. “Living separately” is read as not living as spouses, and it is possible to be under the same roof and still qualify, but the court will look for evidence. A separate provision (section 14 of the Hindu Marriage Act) bars a divorce petition in the first year of marriage unless the court allows it for exceptional hardship or depravity; courts have also considered relaxing this in suitable cases.

Which law applies depends on how you married and your personal law. Hindus, Sikhs, Jains and Buddhists use the Hindu Marriage Act. Anyone who married under the Special Marriage Act, whatever their religion, uses section 28 of that Act. Christians (under the Indian Divorce Act, 1869, section 10A), Parsis (the Parsi Marriage and Divorce Act, 1936) and Muslims (under their personal law and, for dissolution of marriage, the Dissolution of Muslim Marriages Act, 1939, or mutual arrangements such as khula and mubarat) have their own routes, so do not assume the Hindu Marriage Act steps apply to them.

The steps

1. Settle the terms first. The court expects the spouses to have resolved alimony or maintenance, stridhan and gifts, custody and visiting rights for children, division of property, and any loans. Put these in a written settlement. Many delays come from leaving one of these open.
2. Choose the Family Court. The petition can be presented where the marriage was solemnised, where the spouses last resided together, or where either spouse now resides, subject to the Family Courts Act and the rules of your state. Courts differ slightly on the last-resided test, so confirm with the court registry.
3. File the joint petition (first motion). It states the date and place of marriage, the children if any, the period of separation, and that the marriage has broken down and consent is free. Each spouse signs, with a supporting affidavit. Annexures normally include marriage proof, address proof, photographs, and the settlement.
4. Appearance and statements. Both spouses are examined on oath. The court may refer the matter to mediation or counselling and will check that consent is voluntary. Orders on custody and maintenance may be recorded at this stage.
5. Waiting period. The statute says the second motion should be made not earlier than six months and not later than eighteen months after the petition is presented. The six months is meant to allow time for reconciliation. If the second motion is not filed within eighteen months, the petition lapses and you must start again.
6. Second motion. Both spouses appear again and confirm that consent continues. Either spouse can withdraw consent before the decree; if consent is withdrawn, the court cannot grant a decree on that petition.
7. Decree. If satisfied, the court passes the decree of divorce. Collect the certified copy of the decree and the settlement order.

Can the six month period be waived?

Yes, in appropriate cases. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period in section 13B(2) is directory and can be waived by the court if the statutory separation period has run, efforts at mediation or reconciliation have failed, the parties have settled everything including alimony and custody, and further waiting would only prolong their distress. Later, in Amit Kumar v. Suman Beniwal (2021), the court treated these as guiding factors, not a rigid checklist. In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench held that the Supreme Court can use Article 142 to waive the period and, in suitable cases, dissolve a marriage that has broken down irretrievably. That last power belongs to the Supreme Court; a family court cannot dissolve a marriage on the ground of irretrievable breakdown alone.

For a waiver in a Family Court, file a separate application with the first motion or soon after, explain the length of separation, the failure of reconciliation, and attach the settlement showing all issues resolved. Whether a waiver is granted is a judicial decision in each case.

Documents to keep ready

• Marriage certificate or proof of marriage and wedding photographs.
• Identity and address proof of both spouses.
• Proof of separation (separate residence evidence, correspondence).
• Birth certificates of children, if any.
• Income and asset details if maintenance or alimony is part of the settlement.
• The signed settlement, and any earlier orders about maintenance or custody.

Common mistakes

• Leaving settlement terms vague. Courts prefer clear figures, dates and schedules for payment.
• Assuming the six months can be skipped by default. It is waived only on an order.
• Missing the eighteen month outer limit for the second motion.
• Pending cases. If there are criminal complaints (such as an FIR under the BNS for cruelty) or maintenance cases between the spouses, the settlement should say what happens to each, and the courts that can quash or withdraw them have to be approached separately.
• Appearing without a valid appearance route. Courts allow video conferencing or exemption from personal appearance in some situations, but you must apply.

Where a ready kit helps

If you want editable paperwork, Lexfolio’s Mutual Consent Divorce Kit (Hindu Marriage Act and Special Marriage Act) lists ten formats on its product page: joint petitions, affidavits, a waiver application, a second motion, a settlement memorandum with schedules, an assets and liabilities affidavit, a custody and visitation schedule, a joint application to quash an FIR, and a video conferencing or exemption application. The page also says it explains which law applies, waiting periods, the choice of court, and brief notes for Christian, Muslim and Parsi couples, and that it is updated to October 2026. It is described as model formats and general guidance, so the settlement terms must reflect what the two of you have actually agreed.

Whatever route you take, the quickest mutual divorces are the ones where the paperwork, the settlement and the schedule of appearances were prepared before the first date.