Divorce by mutual consent in India, step by step
When both husband and wife agree to separate, they can file a joint petition for divorce by mutual consent. Here are the conditions, the two motions, the six-month waiting period and when courts can waive it.
Which law applies
- Hindus, Buddhists, Jains and Sikhs: Section 13B of the Hindu Marriage Act, 1955.
- Marriages registered under the Special Marriage Act, 1954 (including inter-faith marriages): Section 28 of that Act.
- Other communities have their own laws, so check the law under which you married.
The conditions
- Husband and wife have been living separately for at least one year before filing. “Living separately” means not living as husband and wife, even if under the same roof.
- They have not been able to live together.
- Both freely agree that the marriage should end.
Step 1: Agree on the terms
Settle maintenance or alimony, return of jewellery and belongings (stridhan), custody and visiting arrangements for children, and any property. These terms are written into the petition.
Step 2: First motion
Both spouses file a joint petition in the Family Court (or District Court) where they married, last lived together, or where the wife lives. Both appear before the court, which records their statements.
Step 3: The waiting period
The law gives a six-month period after the first motion (and the petition must be pursued within 18 months), so that the couple can reconsider.
In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that this waiting period is not mandatory. A court can waive it if the couple has been separated for over a year and a half, all issues are settled, and attempts at reconciliation have failed.
Step 4: Second motion and decree
Both spouses appear again and confirm that they still consent. Either spouse can withdraw consent before the decree. If both confirm, the court grants a decree of divorce.
Costs and help
You can file with or without a lawyer, but a lawyer helps draft the settlement correctly. If you qualify, the Legal Services Authority provides a free lawyer: see our legal aid checker. Courts often refer couples to mediation first, which is free in court-annexed mediation centres.