Key points
- The spouses must have lived separately for at least one year and agree that the marriage has broken down and that they want a divorce.
- Two motions are filed: the first records the consent; the second, after six months (up to 18), leads to the decree. The court can waive the six-month period (Amardeep Singh v. Harveen Kaur, 2017).
- The settlement should cover permanent alimony, return of stridhan, custody and visitation, and withdrawal of pending cases.
Step by step
- Agree the terms
Settle permanent alimony or a one-time settlement, division of joint assets, return of stridhan and gifts, custody, visitation and maintenance of children, and withdrawal of any pending criminal or civil cases. Record it in a memorandum of understanding. - File the first motion
A joint petition under Section 13B(1) is filed in the family court having jurisdiction (where the marriage was solemnised, where the parties last lived together, or where the wife resides), with affidavits, marriage proof, photographs and the settlement. - Recording of statements
Both spouses appear and their statements are recorded. Part of the settlement amount is usually paid at this stage. - Second motion
After six months, or earlier if a waiver application is allowed, the second motion under Section 13B(2) is filed. Statements are recorded again, the balance settlement is paid, and the court passes the decree of divorce. - Waiver of the cooling-off period
Apply for waiver showing that the parties have been separated for over 18 months in total, that all efforts at mediation have failed, that the settlement has been carried out, and that further waiting would only prolong agony.
Muslim and other personal laws
Muslim spouses can divorce by mutual consent through mubarat, recorded in a deed, without court proceedings, though a declaration from the family court is often obtained for documentation. Christians divorce under the Indian Divorce Act with a similar two-motion procedure, and Parsis under their Act. Couples married under the Special Marriage Act use Section 28.
Timelines
With waiver, a mutual consent divorce in Delhi can be completed in two to three months. Without waiver, seven to nine months.
Frequently asked questions
Can one spouse withdraw consent after the first motion?
Yes, at any time before the decree. The other spouse's remedy is then a contested petition, and courts have in some cases enforced the settlement's financial terms or drawn inferences from a withdrawal made only to extract more money.
Do both spouses have to be present in court?
Personal presence is the norm. Appearance through video conferencing or a power of attorney holder has been allowed for spouses abroad, at the court's discretion.
Related practice area: Family Matters & Pro Bono
This article is for general information and does not constitute legal advice. Laws, rules and limitation periods change and depend on the facts; please take advice on your own situation before acting. Reading this article does not create a lawyer-client relationship with Akhtars Legalitarian.