When both spouses agree that the marriage cannot continue, divorce by mutual consent is usually the quickest and least painful route.
Who can file
Under s.13B of the Hindu Marriage Act, 1955, a husband and wife can jointly seek divorce if they have lived separately for at least one year, have not been able to live together, and have mutually agreed to dissolve the marriage. A similar provision exists under s.28 of the Special Marriage Act, 1954.
The steps
- Settlement terms — agree on alimony or permanent maintenance, return of jewellery and articles (istridhan), custody and visitation of children, and withdrawal of any pending cases.
- First motion — a joint petition is filed before the Family Court and statements of both parties are recorded.
- Waiting period — the second motion is ordinarily filed after six months. The Supreme Court has held that this period can be waived in appropriate cases, for example where the parties have already lived apart for long and settled all issues.
- Second motion and decree — both parties confirm their consent and the court passes the decree of divorce.
Good to know
- Either party may withdraw consent before the decree.
- A clear, written settlement avoids future disputes — especially about money and children.
- Pending criminal or maintenance cases between the parties are usually settled together.
