A mutual consent divorce under Section 13B of the Hindu Marriage Act requires both spouses to have been living separately for at least one year before a joint petition is filed. After a six-month cooling-off period — which the court may waive where the marriage has irretrievably broken down — a second motion is made and the court passes the decree.
Section 13B of the Hindu Marriage Act, 1955 allows both spouses to apply jointly for divorce where three conditions are all met:
All three must be present. A petition filed before the one-year period has run will not be entertained; there is no discretion to treat a shorter separation as sufficient.
The expression does not necessarily require the spouses to occupy different addresses. The Supreme Court explained in Sureshta Devi v. Om Prakash (1991) that “living separately” in this context means not living as husband and wife — that the marital relationship has in practice ceased, even if circumstances have compelled them to remain under the same roof.
Where parties share accommodation but have not conducted themselves as a married couple and both confirm this on oath, courts have accepted the petition. What the provision requires is an absence of genuine marital cohabitation, not a geographical separation.
| Step | What happens | Approximate timing |
|---|---|---|
| 1. Joint petition filed | Both spouses sign and present the petition at the Family Court with the settlement memorandum | Day 0 |
| 2. Registration and notice | Court registers the case and issues notice to both parties | Days 14–30 |
| 3. Mediation referral | Family Courts Act s.9 requires referral to conciliation; if it fails, proceedings continue | Weeks 4–8 |
| 4. Cooling-off period | Six months from the date of filing (may be waived — see below) | Months 1–6 |
| 5. Second motion | Both parties appear and confirm that consent subsists; must be filed within 18 months of the petition | Month 6–18 |
| 6. Decree | Court satisfies itself that the statutory requirements are met and passes the decree | Days to weeks after step 5 |
The Family Courts Act, 1984 vests jurisdiction over all matrimonial matters — including mutual consent divorce — in the Family Court. In Uttar Pradesh every district has a Family Court. Petitions filed in Bareilly go before the Bareilly District Court Principal Judge, Family Court.
Yes, where the facts justify it. The Supreme Court in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 held that the six-month period in Section 13B(2) is directory and not mandatory, and may be dispensed with where:
An application for waiver must be placed before the court. The court exercises a discretion — it does not waive automatically — and it must satisfy itself that the parties have had genuine time to reflect and are not acting under pressure.
| Document | Notes |
|---|---|
| Marriage certificate | Or proof of marriage where no certificate was issued: invitation, photographs, family affidavits |
| Address proof (both parties) | Aadhar, passport or ration card showing current residence |
| Settlement memorandum | Records agreed terms on maintenance, stridhan, property and children’s arrangements |
| Children’s documents | Birth certificates and agreed custody, access and maintenance terms, if applicable |
| Court-fee stamps | Amount varies; confirm the current rate with the Family Court registry |
| Passport photographs | Both parties |
The settlement memorandum is not a statutory requirement under Section 13B, but family courts in Uttar Pradesh expect it to be filed with the petition. A memorandum that addresses every outstanding matter — maintenance amounts, the return of stridhan, the family home, and children — is the most effective protection against a party raising the same disputes after the decree is passed.
Either party may withdraw consent at any time before the second motion is heard and the decree is passed. A written withdrawal filed with the court stops the petition from proceeding under Section 13B. Once withdrawn, the party seeking a divorce must file a fresh contested petition under the other grounds in Section 13 of the Act.
This point is worth noting when a settlement memorandum is being negotiated: if one party believes the other may resile, the stronger position is to resolve all terms before the petition is filed rather than after.
Section 13B itself does not govern custody or maintenance of children. Where the parties have reached an agreement, those terms belong in the settlement memorandum. However, the court has an independent duty under the Guardians and Wards Act, 1890 to consider the welfare of the child and is not bound by what the parents have agreed, though it ordinarily gives weight to a genuine and considered arrangement.
Where custody or maintenance of a child is in genuine dispute, that is dealt with in separate proceedings and can proceed in parallel.
For couples whose marriage was registered under the Special Marriage Act, 1954 — including inter-religious couples and those who chose to register under that Act — the equivalent provision is Section 28 of that Act. The requirements are the same: one year of separation, a joint petition, and a second motion after six months. The procedure and the documents are identical, and the same Amardeep Singh waiver applies.
Both spouses must have been living separately for at least one year at the date the petition is filed. That period is measured as of filing, not at some later point. If a couple reconciled and then separated again, it is the most recent uninterrupted period that counts.
Yes. The Supreme Court held in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 that the six-month period under Section 13B(2) is directory rather than mandatory, and may be waived when the marriage has irretrievably broken down, all efforts at settlement have been exhausted, and neither party seeks further time. An application for waiver must be placed before the court.
Yes, up until the second motion is made and the decree is passed. Either party may file a written withdrawal before the second motion, which prevents the petition from proceeding under Section 13B. The other party would then need to file a fresh contested petition on other grounds if they still seek a divorce.
Section 13B applies to marriages solemnised under the Hindu Marriage Act, which covers Hindus, Buddhists, Sikhs and Jains. For couples who married under the Special Marriage Act 1954 — including inter-religious couples — Section 28 of that Act provides an equivalent procedure with the same requirements. Muslim personal law recognises mubara'at as a form of mutual dissolution, but it operates differently. Christian divorce is governed by the Divorce Act 1869.
Section 13B does not address maintenance or property division. These are agreed between the parties in a settlement memorandum filed with the petition. The court does not approve or reject the commercial terms, but it satisfies itself that consent is genuine. Stridhan and jointly held property should be addressed explicitly in the memorandum to prevent later disputes.
Without a waiver of the cooling-off period, the minimum is about seven to eight months from filing to decree — a few weeks for registration and mediation referral, six months cooling-off, then a further few weeks for the second motion hearing. With current cause-list volumes in UP family courts, nine to eighteen months is a realistic range. A waiver, where granted, can reduce this to three to four months.