Mutual Divorce Process in India, from First Motion to Decree

The mutual divorce process in India has two court appearances. First, husband and wife, who must have lived apart for at least a year, file a joint petition. Then, after a six-month wait, they confirm it in a second motion and the family court grants the decree. For Hindus this is section 13B of the Hindu Marriage Act, 1955.

The whole thing usually takes 6 to 18 months. It can be much quicker when the court waives the waiting period, which the Supreme Court allowed in 2017.

Who Can File for Mutual Divorce?

A couple can file for mutual divorce when three things are true. They have lived separately for one year or more. They have not been able to live together. And both freely agree that the marriage should end.

The law that applies depends on how you married:

Separation does not always mean two different houses. It means you have not lived as husband and wife. Your lawyer will write the date of separation in the petition, so agree on that date between you first.

There is also the one-year rule from the wedding date. Under section 14 of the Hindu Marriage Act, no divorce petition can usually be filed within a year of marriage.

Step 1, the First Motion

The first motion is the joint petition. Both spouses sign it, and both must appear in the family court on the first date.

The petition states:

• the date and place of marriage
• where each of you lives now
• the date from which you have lived separately
• that you have not been able to live together
• the children's names and ages, if any
• the settlement you have agreed on

On the first date, the judge or a counsellor may ask whether either of you wants to try again. Many family courts send the couple to the court's mediation centre once, even in mutual cases. Go. It is a short meeting, and the court notes that it happened.

The court then records both statements and fixes the case for the second motion.

Step 2, the Six-Month Cooling-off Period

After the first motion, the law asks the couple to wait. Section 13B(2) says the second motion can be made not earlier than six months and not later than 18 months after the petition was presented.

The idea is simple. It gives both sides time to change their minds.

Can the Six-Month Period Be Waived?

Yes, in some cases. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court said the six-month period is not compulsory, and a family court can waive it. The court looks at these points:

• the one-year separation plus the six months are already over by the time of the first motion, so the couple have been apart for about 18 months or more
• mediation and attempts to reunite have failed
• the couple have settled everything, including alimony and custody
• waiting longer would only prolong their suffering

The waiver application can be filed after the first motion, and the court decides on it. If it is allowed, the second motion can follow within weeks. Many couples who separated long ago get their decree this way.

Step 3, the Second Motion and the Decree

On the second motion, both spouses appear again and tell the court they still want the divorce. The court checks that the consent is free and the settlement is in place.

If satisfied, the court passes the decree of divorce. Collect a certified copy. You will need it for remarriage, for changing your name or marital status on documents, and for any bank or property matters.

What Should the Settlement Agreement Include?

The settlement is the heart of a mutual divorce. A vague settlement leads to new cases later. Write every point down.

Many couples split a one-time alimony into two parts, one paid at the first motion and the rest at the second motion. That gives both sides some comfort.

Documents and Fees

Keep these ready before you meet the lawyer:

1. Marriage certificate, or the wedding card and photos if the marriage was not registered.
2. Address proof and ID for both spouses.
3. Proof of separate residence, if you have it.
4. Income tax returns and salary slips for the last two or three years.
5. Details of property, gold, bank accounts and loans.
6. Children's birth certificates and school details.
7. Recent passport-size photos of both.
8. The signed settlement terms.

Court fees are fixed by each state and are usually small. The main cost is the lawyer's fee, which varies a lot between a district town and a metro. Some couples hire one lawyer each, and some share one for drafting. If either of you cannot afford a lawyer, ask the district legal services authority, or call the NALSA helpline on 15100, as listed on the NALSA website.

Can One Partner Withdraw Consent?

Yes. Consent must hold until the decree. Either spouse can withdraw it any time before the second motion, and then the court cannot grant a mutual divorce. The other spouse would have to file a contested case.

This is why lawyers prefer to complete the money and custody terms before the second motion. If a large payment is due only at the decree, both sides have a reason to turn up.

After the Decree

A divorce by mutual consent normally has no appeal, because both spouses asked for it. Even so, confirm with your lawyer the date from which you are free to remarry under section 15 of the Hindu Marriage Act.

For the bigger picture, including contested cases and other religions, see our guide to the divorce process in India. When the time comes to look for a new match, read second marriage after divorce.