The short answer
A mutual consent divorce under Section 13B of the Hindu Marriage Act, 1955 needs both spouses to have lived separately for at least one year and to agree that the marriage should end. They file a joint petition, confirm it in a second motion six to eighteen months later, and the court then passes the decree. The six-month gap can be waived in suitable cases.
- Provision
- Section 13B, Hindu Marriage Act, 1955; Section 28, Special Marriage Act, 1954
- Separation required
- One year or more before the petition
- Second motion
- Between 6 and 18 months after the first
- Court
- Family court, or district court where there is none
What must the couple show?
- They have been living separately for one year or more.
- They have not been able to live together.
- They have mutually agreed that the marriage should be dissolved.
Living separately refers to not living as husband and wife. Courts have accepted that spouses can be living separately under the same roof.
What is the procedure?
- Settle the terms in writing: alimony or maintenance, custody and visitation, division of property and withdrawal of pending cases.
- File the joint petition and record statements before the court. This is the first motion.
- Wait six months. Either spouse can withdraw consent during this period.
- Move the second motion not later than eighteen months after the petition, confirming consent.
- Decree. The court, satisfied that the consent is free and the averments are true, dissolves the marriage.
Can the six-month period be waived?
Yes. In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held that the period is directory. A court may waive it where the spouses have already been separated for more than eighteen months in total, mediation and reconciliation efforts have failed, all financial and custody issues are settled, and waiting would only prolong their distress. The application for waiver can be filed a week after the first motion.
What if one spouse withdraws consent?
The court cannot grant a decree under Section 13B without the consent of both spouses at the second motion. The other spouse would then need to file a contested petition on a ground such as cruelty or desertion. Separately, in Shilpa Sailesh v. Varun Sreenivasan (2023) the Supreme Court held that it can dissolve a marriage for irretrievable breakdown under Article 142 of the Constitution. That power belongs to the Supreme Court alone.
Sources
- Hindu Marriage Act, 1955, Sections 13B and 14
- Special Marriage Act, 1954, Section 28
- Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746
- Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544
This guide states the general legal position in India as on 14 November 2026. It is not legal advice. Time limits and outcomes depend on the facts and on later amendments and judgments. See the disclaimer, and read more on the firm's Family and Matrimonial practice.