By Harsh Singh Dahiya, Advocate, Supreme Court of India | Partner, Sterling & Partners
When both spouses have decided that a marriage is irretrievably over, the law provides a dignified, relatively swift exit. Mutual consent divorce under Section 13B of the Hindu Marriage Act, 1955 allows couples to dissolve their marriage without fault-finding or contested hearings.
The Legal Framework
Section 13B of the Hindu Marriage Act and Section 28 of the Special Marriage Act govern mutual consent divorce. The parties must have lived separately for at least one year before filing, and both must consent freely to the dissolution.
The Two-Motion Process
The procedure involves two motions: the first motion petition is filed jointly by both spouses. After a mandatory six-month cooling-off period (which courts may waive in genuine cases), the second motion must be filed. If no second motion is filed within 18 months, the petition lapses.
What Must Be Settled Before Filing
Before filing, both parties must agree on: permanent alimony/maintenance, return of stridhan (wife’s property), custody and visitation of children, division of jointly held assets, and withdrawal of any pending litigation between the parties.
The Cooling-Off Period: Waiver After Amit Kumar v. Suman Beniwal
The Supreme Court in Amit Kumar v. Suman Beniwal (2021) confirmed that the six-month cooling-off period is directory, not mandatory. Courts may waive it if satisfied that the marriage has irretrievably broken down and the parties have genuinely settled all issues.
Timeline and Practical Expectations
Without waiver: 6 to 18 months from first motion to decree. With waiver: 4 to 12 weeks from filing. Practical delays arise from court scheduling, documentation requirements, and verification hearings.
About Sterling & Partners
Sterling & Partners is a Supreme Court law firm based in New Delhi advising on divorce, matrimonial disputes, and family law matters across India.