Family · 8 min read
Mutual consent divorce — Section 13B HMA, the two motions and waiver
A complete walk-through of mutual consent divorce — eligibility, the first and second motions, waiver of cooling-off, settlement of incidental issues and registration of the decree.
Mutual consent divorce is the most amicable and quickest route to ending a marriage where both spouses agree. Under the Hindu Marriage Act, 1955 it is provided in Section 13B; the Special Marriage Act, 1954 (Section 28), the Indian Divorce Act, 1869 (Section 10A) and the Parsi Marriage and Divorce Act, 1936 contain analogous provisions.
The process involves two motions before the Family Court, separated by a statutory cooling-off period of six months. The Supreme Court has held that this period may be waived in suitable cases.
Who this guide helps
Is this for you?
- Spouses who have lived separately for at least one year
- Couples who have settled — or are willing to settle — maintenance, custody, property and articles
- NRI couples who wish to conclude proceedings during a single visit (waiver may be sought)
Governing law
Legal basis
- Section 13B HMA — divorce by mutual consent
- Section 28 Special Marriage Act, 1954
- Section 10A Indian Divorce Act, 1869 (for Christians)
- Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 — waiver of cooling-off period
- Shilpa Sailesh v. Varun Sreenivasan, (2023) 14 SCC 231 — Supreme Court's power under Article 142
Step by step
The procedure
- 01
Eligibility check
Both parties must have been living separately for at least one year (this can include living under the same roof but as separate households). Both must agree the marriage cannot continue and consent voluntarily.
- 02
Negotiate and draft the settlement
Settle maintenance (one-time alimony or monthly), custody and visitation, property division, return of articles and stridhan, and quashing of any pending complaints. Reduce it to a written Memorandum of Settlement.
- 03
First motion — joint petition
File a joint petition in the Family Court of competent jurisdiction (where the couple last resided together / where the marriage was solemnised / where the wife resides). Both parties record statements; the court records consent.
- 04
Cooling-off period
Statutorily six months, extendable up to eighteen months. The court may waive it on application, considering — (i) separation period and bona fide attempts at reconciliation; (ii) settlement of all issues; (iii) a clear conclusion that further waiting will only prolong agony.
- 05
Second motion
Both parties reaffirm consent. If satisfied, the court passes the decree of divorce. The decree is appealable but rarely interfered with where consent is genuine.
- 06
Decree, certificate and incidental compliances
Obtain a certified copy of the decree. Update records — passport, bank, employer, insurance, nominations. Implement the settlement (transfer of property, payment, custody schedule).
Checklist
Documents to keep ready
- Marriage certificate (or proof of marriage — photographs, invitation card)
- Identity & address proof of both spouses
- Photographs taken together (4–6 from different times)
- Memorandum of Settlement, signed by both
- Income proof (where maintenance is in issue)
- Birth certificates of children (where custody is in issue)
What to expect
Indicative timeline
- First motion: 1–3 months from filing
- Second motion: typically 6 months after the first; sooner if waiver is granted
- Decree: usually on the date of the second motion
Money matters
Cost components
- Court fee — nominal
- Counsel fee — fixed brief fee, agreed in writing
- One-time alimony / monthly maintenance — as agreed in the settlement
Indicative only. Actual outflow depends on the forum, valuation and scope of work.
Avoid these
Common pitfalls
- Vague settlement — leads to disputes after divorce
- Withdrawal of consent before the second motion — divorce cannot be granted on mutual consent thereafter
- Ignoring criminal complaints (Section 498A IPC / 85 BNS, DV Act) — should be quashed in parallel
- NRIs filing without authorisation — POA / video-conference consent must be properly recorded
From the chambers
Practical tips
- Consider a one-time alimony to achieve a clean break wherever feasible
- Record visitation in detail — days, timings, vacations, virtual contact
- Where one spouse is abroad, request video-conferencing for both motions
Questions we hear
Frequently asked
Can consent be withdrawn?
Yes — either party can withdraw consent before the second motion. A divorce by mutual consent cannot then be granted; contested proceedings on other grounds may follow.
Is a one-year separation strictly necessary?
It is the statutory requirement. The Supreme Court has, in exceptional cases, exercised its Article 142 power to dissolve the marriage on irretrievable breakdown without insisting on this period.
This guide is general information, not legal advice. The applicable law and procedure may vary depending on the facts of your matter and amendments enacted from time to time.