lawyerinnoida -Divorce Lawyers in Delhi, Dwarka Court

Mutual Consent Divorce
Mutual Divorce Lawyer in Noida

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one ground specifically enumerated in Section 13. Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provides for divorce by mutual consent.

The conditions required under section 13(B) of the Hindu Marriage Act 1955 are as follows:

  • Husband and wife have been living separately for a period of one year or more.
  • That they are unable to live together.
  • And that both husband and wife have mutually agreed that the marriage has totally collapsed. Hence marriage should be dissolved. Under these circumstances, a Divorce by Mutual consent can be filed.

As per the Indian Legal system, a divorce procedure fundamentally begins with the filing of a divorce petition.

Where to file a divorce petition:

  • The court can be one where couple seeking divorce last lived.
  • The court can be one where the marriage was solemnized.
  • The court can be one where the wife is residing as of present.

The entire procedure of divorce in India starts begins with the divorce petition which is filled by the parties associated with the divorce process and notice of the same is served to the other one.

According to the Hindu Marriage Act, 1955; a petition for a 'mutual divorce' can be filed if you and your spouse are facing difficulties and have decided to part your ways legally. You can even file for divorce if the other party is not willing to get a divorce- this is called, 'Contested Divorce'.

Now check out the step by step procedure involved in case of Mutual Divorce:

Step 1: Petition to file for divorce

  • Firstly, a joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both the spouses on the ground stating that they have not been able to live together and have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more.
  • This petition will, then, be signed by both the parties.
Step 2: Appearing before Court and inspection of the petition

  • Both the parties will have to appear before the family court after the filing of the petition.
  • The parties would present their respective counsels/lawyers.
  • The court would critically observe the petition along with all the documents presented in the court.
  • The court may even attempt to bring reconciliation between the spouses, however, if this is not possible, the matter proceeds for further follow-ups.
Step 3: Passing orders for a recording of statements on oath

  • After the petition is scrutinized by the court and it satisfies, it may order the party's statements to be recorded on oath.
Step 4: First Motion is passed and a period of 6 months is given before the Second Motion

  • Once the statements are recorded, an order on the first motion is passed by the court.
  • After this, a six months period is given to both the parties to a divorce, before they can file the second motion.
  • The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.
Step 5: Second Motion and the Final Hearing of petition

  • Once the parties have decided to go further with the proceedings and appear for the second motion, they can proceed with the final hearings.
  • This includes parties appearing and recording of statements before the Family Court.

Note: Recently, the Supreme Court has held that the 6 months period given to the parties can be waived off at the decision of the court. Therefore, the parties who have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties, this six months it can be waived off. Even if the court is of the opinion that the waiting period will only extend their sufferings, the six months can be waived off in this case also.

Step 6: Decree of Divorce:

  • In a mutual divorce, both parties must have given consent and there shall not be any differences left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc.
  • Thus, there needs to be complete agreement between the spouses for the final decision on the dissolution of marriage.
  • If the court is satisfied after hearing the parties that the allegations in the petition are true and that there cannot be any possibility of reconciliation and cohabitation, it can pass a decree of divorce declaring the marriage to be dissolved.
FINAL CLOSURE: The divorce becomes final once the decree of divorce has been passed by the court.


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Frequently Asked Questions (FAQs)

1What is a Mutual Consent Divorce?
A Mutual Consent Divorce is a legal process where both husband and wife mutually agree to dissolve their marriage and jointly file a divorce petition before the Family Court without contesting the matter.
2Which law governs Mutual Consent Divorce in India?
For Hindus, Mutual Consent Divorce is governed by Section 13B of the Hindu Marriage Act, 1955. Similar provisions are available under the Special Marriage Act, 1954 and other personal laws.
3What are the eligibility conditions for Mutual Consent Divorce?
The spouses must have been living separately for at least one year, be unable to live together, and mutually agree that the marriage has irretrievably broken down.
4Where can a Mutual Divorce petition be filed?

A Mutual Consent Divorce petition can be filed in the Family Court having jurisdiction where:

  • The marriage was solemnized.
  • The couple last resided together.
  • The wife is currently residing.
5How long does a Mutual Consent Divorce take in India?
The timeline depends on the facts of the case. In many cases, the process may take several months. Courts may waive the statutory cooling-off period in appropriate circumstances as per judicial guidelines.
6What is the First Motion in Mutual Divorce?
The First Motion is the stage where both spouses jointly file the divorce petition and record their statements before the Family Court expressing their intention to dissolve the marriage.
7What is the Second Motion in Mutual Divorce?
The Second Motion is the final stage where both parties reaffirm their consent before the court and request the grant of a divorce decree.
8Can the six-month waiting period be waived?
Yes. The Family Court may waive the cooling-off period in suitable cases where all disputes regarding alimony, child custody, maintenance, and property settlement have already been resolved.
9Is personal appearance required in Mutual Consent Divorce cases?
Generally, both spouses are required to appear before the Family Court during important stages of the proceedings. However, exemptions may be granted by the court in certain circumstances.
10Can one spouse withdraw consent after filing the petition?
Yes. Mutual Consent Divorce requires continuous consent from both parties until the final decree is granted. If either spouse withdraws consent before the final order, the mutual divorce petition may not succeed.