When both husband and wife agree that the marriage cannot continue, divorce by mutual consent is usually the quickest and least stressful option. For Hindus, Sikhs, Jains and Buddhists, it is governed by Section 13B of the Hindu Marriage Act, 1955. For marriages registered under the Special Marriage Act, 1954, Section 28 provides a similar process.
Basic requirements
- Husband and wife have been living separately for at least one year before filing.
- They have not been able to live together.
- Both have freely agreed that the marriage should be dissolved.
“Living separately” does not always mean living in different houses. It means they have not been living as husband and wife.
Which court in Delhi?
The joint petition is filed before the Family Court having jurisdiction, usually where the marriage was solemnized, where the couple last lived together, or where the respondent resides. Delhi has Family Courts in its district court complexes, including Tis Hazari.
Step 1: Settle the terms
Before filing, both sides normally agree in writing on all issues, such as:
- Permanent alimony or one-time settlement amount and payment schedule
- Custody of and visitation with children, and their expenses
- Return of stridhan, jewellery and other belongings
- Withdrawal of any other pending cases between the parties
Step 2: First motion
Both parties file a joint petition with supporting affidavits and appear in court. The court records their statements. Many cases are first sent to the court’s mediation centre to confirm the settlement.
Step 3: Six-month period and second motion
The law provides that the second motion is moved not earlier than six months and not later than 18 months after the first motion. At the second motion, both parties confirm their consent, and the court passes the decree of divorce if it is satisfied.
Can the six-month period be waived?
Yes, in suitable cases. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period is not mandatory and the court may waive it after considering factors such as: the parties have already been separated for more than one and a half years, mediation and reconciliation efforts have failed, and all issues including alimony and custody are settled. An application for waiver can be filed after the first motion.
Documents usually needed
- Marriage certificate or wedding photographs and invitation card
- Address and identity proof of both parties
- Proof of separate residence, if available
- Details of income and assets, as required by the court
- Written settlement terms
Either party can withdraw consent before the decree is passed, so it is important that the settlement terms are clear and fair to both sides. Related reading: family court matters and court marriage and marriage registration.
If you need guidance on your specific situation, you may contact the office of Advocate Rohit Grewal at Tis Hazari Courts, Delhi, through the contact page.
Disclaimer: This article is for general information only and is not legal advice. The law and its application depend on the facts of each case. For advice on your matter, please consult an advocate.