What is the Procedure to Seek Mutual Divorce in India?

Ending a marriage is never an easy decision — but sometimes, it’s the healthiest one. When both partners agree that their marriage isn’t working and it’s time to move on, mutual divorce offers a simpler, more peaceful legal path forward.

In India, mutual divorce is legally recognised and is governed by various personal laws like the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and other applicable laws depending on the couple’s religion or how they were married. While it’s less complicated than a contested divorce, the process still involves fulfilling certain conditions, submitting documents, and attending court proceedings — which can feel overwhelming without the right guidance.

That’s why we’ve put together this easy-to-understand guide — so you don’t have to scroll through endless legal jargon or get lost in confusing procedures.

Whether you’ve already made the decision or are just exploring your options, this article walks you through:

• Conditions required for filing mutual divorce
• Step-by-step legal process for mutual consent divorce in India
• Legal requirements based on religion (Hindu, Muslim, Christian, Parsi & Special Marriage Act)
• Essential documents needed to file for mutual divorce

Conditions for Mutual Divorce in India

Before filing for mutual consent divorce, there are certain legal conditions that must be fulfilled. These ensure that the process is fair, voluntary, and in accordance with Indian personal laws like the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

• Living Separately for at Least One Year: Both spouses must have been living separately for a minimum of one year before filing the joint petition. “Living separately” means they have ceased marital cohabitation, even if under the same roof. This condition is outlined in Section 13B(1) of the Hindu Marriage Act, 1955.
• Mutual Agreement to Divorce: There must be a clear and voluntary agreement between both spouses to end the marriage. The decision must be free from coercion, fraud, or undue influence, as required under Section 13B.
• Irretrievable Breakdown of Marriage: Both parties must believe that the marriage has broken down beyond repair and that reconciliation is not possible.
• Settlement of Marital Issues: All related matters such as:
  should be resolved by mutual consent. Courts generally accept a written settlement agreement as long as it's fair and lawful.
• • Alimony or maintenance
  • Custody of children
  • Division of assets
  • Return of dowry or gifts (if applicable)
• Two Appearances in Family Court: Both spouses must appear before the court twice — first during the filing of the petition, and second after the statutory “cooling-off” period of six months. This condition is as per Section 13B(2) of the Hindu Marriage Act, 1955. The six-month period can be waived by the court, as held in Amardeep Singh v. Harveen Kaur (2017).

Read also: Mutual Divorce vs. Contested Divorce: What’s the Difference? 

How to Get a Divorce with Mutual Consent in India: Step-by-Step Procedure

The legal process to apply for a mutual divorce slightly varies with the jurisdiction of that particular place. But there are some general steps which remain the same for everyone. Let’s understand these steps together

Step 1: Filing the Mutual Divorce Petition

• Drafting the Petition: You should always consult a good lawyer to prepare your mutual divorce petition. Don’t forget to add the following details: the reason for divorce, any arrangements for children if applicable, and details of assets.
• Signing the Petition: Post preparing the mutual divorce petition both spouses are required to sign the petition. This indicates their consent to the divorce terms. The petition is filed under the relevant marriage law (for instance, under Section 13B of the Hindu Marriage Act, 1955 for Hindus) after at least one year of marriage.
• Submission to the Court: Next you have to submit the petition to your nearby family court which has jurisdiction over your case. Couple to file this petition at any of the following places.
• • The family court in the area where the marriage was solemnized (the place of the wedding ceremony)
  • The family court where the couple last lived together as husband and wife
  • The family court where the wife is residing at the time of filing

Step 2: Court Hearing and Reconciliation Attempt

After the joint petition is filed, the family court will schedule a date for the first court appearance. Both spouses are required to appear before the judge, ideally with their respective lawyers (if appointed).

During this hearing, the judge will:

• Examine the mutual divorce petition and accompanying documents
• Ask basic questions to verify the identities of both parties
• Ensure that the petition has been filed voluntarily, without any coercion or fraud
• Check that the conditions under Section 13B of the Hindu Marriage Act, 1955 have been fulfilled

Additionally, the court may ask for proof of separation for at least one year, which is a mandatory requirement under the law. This could be in the form of an affidavit, rent agreements showing different addresses, or any other credible evidence of separate living.

At this stage, the court often makes a genuine attempt to explore the possibility of reconciliation. The judge may ask if either party is willing to reconsider or if there is any scope to resolve differences. In some jurisdictions, the court may even refer the couple to a court-appointed counselor or mediator for one or two sessions before proceeding.

If the judge is satisfied that both spouses are firm in their decision, have been living separately, and have mutually agreed to divorce, the court records this and allows the process to move to the next stage — recording statements on oath.

Step 3: Recording of Statements on Oath

Once the court is convinced that the petition is in order and both spouses are firm in their decision, it directs that the statements of the husband and wife be recorded on oath. This is essentially a confirmation in the court record of the facts stated in the petition. Both parties give a sworn statement (oral or written in the form of affidavits) confirming that they have indeed agreed to divorce mutually, that they have resolved matters like maintenance, custody, etc., and that they are filing the petition without any coercion. The court ensures these statements are recorded properly, as they will form the basis for granting the divorce in the next stage.

Step 4: First Motion Order and Waiting Period

After both parties record their statements before the judge, the court passes what's known as the first motion order. This means the court acknowledges that the first phase of the mutual divorce process is complete.

However, as per Section 13B(2) of the Hindu Marriage Act, 1955, there's a mandatory cooling-off period of six months before the couple can file for the second motion (final step in divorce). This period can extend up to 18 months from the date of the first motion.

The purpose of this waiting period is to give the couple time to reflect on their decision and ensure they’re not rushing into divorce. During this time, either spouse has the right to withdraw their consent — which would halt the mutual divorce process altogether.

But here’s the important part — the six-month waiting period is not always mandatory. In the landmark case of Amardeep Singh v. Harveen Kaur (Supreme Court, 2017), the Court held that this period is directory, not mandatory. That means courts have the discretion to waive it, depending on the circumstances.

If the couple has already been separated for a long time, all issues like alimony, child custody, and property division are settled, and there's clearly no chance of reconciliation, the judge may choose to waive the cooling-off period altogether.

In practice, many couples file an application requesting the waiver, and if the conditions are met, courts often approve it — speeding up the divorce process significantly. Otherwise, the couple simply waits out the required six months before moving to the next step.

Step 5: Second Motion and Final Hearing

After the cooling-off period (or as soon as a waiver is granted), the spouses must return to court to confirm their desire to proceed with the divorce – this is known as moving the second motion. Essentially, anytime after 6 months (and before 18 months) from the first motion, if both parties still agree to divorce, they file a second motion petition for the final hearing​: The court fixes a date for this final hearing. At the second motion hearing, both husband and wife appear again and reiterate under oath that nothing has changed – they both still seek a divorce and stand by the statements and conditions in the original petition. The judge may once more verify that all key issues (like maintenance, child custody, and division of property) have been mutually agreed upon and there are no pending disputes. This step is basically a safeguard to ensure that mutual consent still exists at the time of finalizing the divorce.

Step 6: Divorce Decree (Final Order)

Once the judge is satisfied that both parties have maintained their consent and all legal requirements are fulfilled, the court will grant a decree of divorce by mutual consent​ This decree is the final legal document that dissolves the marriage. It declares that the marriage is dissolved and that the divorce is effective from that date. With this decree, the mutual divorce process is complete. Both parties are now legally divorced and free to move on with their lives. (After a mutual consent divorce decree, since it is based on agreement, there is typically no appeal – however, if any party wishes to challenge it, they would have to show some serious issue like fraud or coercion in obtaining the consent.) Once divorced, former spouses are generally free to remarry as per law, subject to the conditions of the decree.

By following the above steps and ensuring all conditions are met, a mutual consent divorce can be obtained in the smoothest possible manner under the law. It is often the quickest and most amicable way to end a marriage, as it avoids unnecessary litigation and acrimony.

Legal Requirements for Mutual Divorce Based on Religion in India

Here are the conditions for mutual divorce across various religious communities in India

Mutual Divorce Under Hindu Marriage Act, 1955

For Hindus, mutual consent divorce is governed by Section 13B of the Hindu Marriage Act, 1955. This provision allows a married couple to dissolve their marriage peacefully when both parties agree that the relationship is no longer working.

• Joint Petition Filing: Both husband and wife must file a joint petition before the District Court stating that they have mutually agreed to end the marriage.
• Grounds for Divorce: The couple should have been living separately for at least one year and must agree that they are unable to live together and wish to dissolve the marriage.
• Timing of Motion: After the petition is filed, the couple can move the second motion for divorce after six months, but not later than eighteen months. No withdrawal of consent should occur during this period.
• Court Decree: If the petition isn’t withdrawn, and the court finds that the marriage was solemnised and the facts presented are true, a divorce decree is granted. The divorce becomes effective from the date of the decree.
• Reflective Period: The 6 to 18 months between the first and second motion is known as the “cooling-off” or reflective period. It allows both spouses to reconsider their decision and seek guidance from friends or family.
• Living Separately: The one-year separation period must immediately precede the petition. This shows a clear intention not to perform marital obligations.
• Mutual Consent Continuity: Consent must continue throughout the process until the final decree is passed. If either party withdraws consent—unless due to fraud or coercion—the petition becomes void.

Mutual Divorce Under Muslim Personal Law

In Muslim law, mutual divorce is based on mutual agreement and is not governed by a codified statute like in other religions. Instead, it derives its principles from Sharia and interpretations within Sunni and Shia schools of thought. There are two primary forms of mutual divorce: Khula and Mubarat.

1. Mutual Consent: Both husband and wife must willingly agree to end the marriage.
2. Offer and Acceptance: One party initiates the divorce, and the other party accepts it — this mutual acceptance is essential for the process to be valid.
3. Terms of Agreement: Both parties must agree on the terms of separation, including matters like financial settlement, custody of children, and return of dowry (mehr).
4. Presence of Witnesses: While not strictly necessary in all schools, some interpretations recommend the presence of witnesses to validate the divorce.
5. Iddah (Waiting Period): The wife must observe a waiting period (iddah), usually for about three menstrual cycles or three lunar months, during which she cannot remarry. This allows for any possibility of reconciliation or confirmation of pregnancy.
6. Financial Settlement: The financial aspects such as mehr, maintenance during iddah, and return of gifts or property are typically addressed as part of the agreement.
7. Additional Conditions in Khula and Mubarat:

• Khula: Initiated by the wife. She may seek divorce by offering compensation — often returning her mehr or another agreed property — to the husband. It is valid only with the husband's acceptance.
• Mubarat: Both spouses mutually agree to end the marriage. The proposal can come from either side. Once accepted, the divorce becomes irrevocable.
• Irrevocability: Once Khula or Mubarat is finalized, the divorce is effective immediately and considered irrevocable under most interpretations.
• Differences Across Schools: The exact procedures and rights vary slightly between Sunni and Shia interpretations, particularly regarding witness requirements, iddah, and revocation rights.

Since Muslim personal law is largely uncodified and varies with sect and interpretation, it is advisable to consult a family lawyer or religious scholar to ensure the correct process is followed in accordance with the individual's faith and community practices.

Read also: Mutual Divorce Procedure under Muslim Law in India 

Mutual Divorce Under Christian Law (Divorce Act, 1869)

Christians in India seeking divorce by mutual consent are governed by Section 10A of the Indian Divorce Act, 1869. This provision allows both spouses to end their marriage peacefully through mutual agreement, provided certain conditions are met.

1. Joint Petition: Both husband and wife must jointly file a petition for divorce before the District Court.
2. Grounds for Divorce: The spouses must have been living separately for a period of at least two years, be unable to live together, and mutually agree that the marriage should be dissolved.
3. Timing of Motion: The second motion for divorce can be filed no earlier than six months and no later than eighteen months after the date of presenting the initial petition.
4. Court Decree: If the petition is not withdrawn and the court is satisfied, after due inquiry, that the statements in the petition are true and that mutual consent still exists, it grants a decree of divorce. The marriage is legally dissolved from the date of the decree.

This provision ensures that Christian couples can separate amicably while also providing a reflective period to reconsider their decision before the divorce is finalized.

Mutual Divorce Under Parsi Law (Parsi Marriage and Divorce Act, 1936)

For Parsis in India, mutual divorce is governed by Section 32B of the Parsi Marriage and Divorce Act, 1936. This provision allows both spouses to jointly seek a divorce through a civil suit when the marriage has broken down beyond reconciliation.

1. Joint Suit Filing: Both husband and wife must jointly file a suit for divorce before a Parsi District Matrimonial Court. There is no restriction based on when the marriage was solemnised.
2. Grounds for Divorce: The couple must have lived separately for at least one year, be unable to live together, and mutually agree that the marriage should be dissolved. However, the suit can only be filed after at least one year has passed since the date of marriage.
3. Court Decree: The court will verify that the marriage was performed under the Parsi Marriage and Divorce Act, the facts stated in the suit are true, and that the consent to divorce was not obtained by force or fraud. If satisfied, the court passes a decree declaring the marriage dissolved, effective from the date of the decree.

This provision ensures that Parsi couples can part ways peacefully, provided mutual consent exists and legal requirements are met.

Mutual Divorce Under Special Marriage Act, 1954

For couples married under civil law, the provisions of mutual divorce are covered under Section 28 of the Special Marriage Act, 1954. This Act applies to interfaith couples or those who chose to marry under secular law, irrespective of religion.

1. Living Separately for One Year or More: Both spouses must have lived separately for a continuous period of at least one year before filing for mutual divorce.
2. Inability to Live Together: The couple must agree that they are unable to live together and that the marriage has broken down beyond repair.
3. Mutual Agreement: Both parties must mutually consent to dissolve the marriage. This agreement must be sustained throughout the entire process, including during the final motion in court.

The court grants a decree of divorce if it is satisfied that all legal conditions are met and that the mutual consent remains valid at the time of final hearing.

Documents Required for Mutual Divorce

To initiate a mutual divorce petition in India, both spouses must submit supporting documents that help the court validate their identity, relationship history, income status, and proof of separation. These documents ensure that the legal conditions under acts like the Hindu Marriage Act, 1955 or Special Marriage Act, 1954 are properly fulfilled.

1. Identity & Marriage Proof

• Marriage Certificate: A government-issued document proving legal solemnization of the marriage. (Registrar of Marriages)
• Four Photographs of Marriage: Typically from the wedding ceremony, used as visual proof of marriage.
• Address Proof of Both Spouses: Aadhar card, passport, voter ID, or utility bill showing current residential address.

2. Income & Employment Details

• Income Tax Return (Last 3 Years): Filed ITR copies of the income-earning spouse. (Income Tax Department)
• Salary Slips and Appointment Letters: Documents to verify current income and professional designation of both parties.
• Details of Profession and Current Remuneration: Includes nature of employment, company name, salary structure, etc.

3. Asset Details

• Details of Movable Assets: Bank statements, mutual funds, vehicles, jewelry, etc.
• Details of Immovable Assets: Property ownership documents, house deeds, rental agreements, etc.

4. Family & Background Information

• Family Details of Both Spouses: Basic details such as names, relationships, and dependents (useful for child custody matters).

5. Proof of Separation

• Proof of Living Separately for Minimum One Year: Rent agreements, address change records, or notarized separation agreement.
• Certificates or Statements Showing Attempts at Reconciliation: Counseling reports, NGO intervention letters, or mediation records.
• Certificates Confirming Over One Year of Separation: Sworn affidavits or court acknowledgment, especially if physical proof is unavailable.

Note: The exact documents may vary slightly depending on the personal law applicable (Hindu, Muslim, Christian, Parsi, or Special Marriage Act) and the jurisdiction of the family court. Always consult a qualified family lawyer to ensure you submit a complete and accurate set of documents.

Latest Landmark Judgment by the Court on Mutual Consent Divorce

Silence is Not the Way to Withdraw Consent

The Hon’ble Rajasthan High Court in Suman v. Surendra Kumar, AIR 2003 Raj 155 held that silence from one party does not amount to withdrawal of consent in a mutual divorce petition. In this case, the respondent remained silent for over three years, affecting the proceedings. The court clarified that if the respondent wished to withdraw consent, he should have stated it clearly at the stage of the second motion.

The Court further noted that the husband’s silence was a tactic to harass the wife, and a rigid interpretation of Section 13B(2) of the Hindu Marriage Act should be avoided. It held that just because both parties did not sign the second motion, it cannot automatically be assumed that consent was missing. In such circumstances, consent may be presumed from conduct.

Voluntary Consent Required

The Hon’ble Supreme Court in Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 emphasized that mutual consent for divorce must be given voluntarily. The Court stated that this ensures the genuineness of the petition and confirms that the consent was not obtained through force, fraud, or undue influence.

The Court further added that it can conduct any inquiry it deems necessary — including the personal hearing of both parties — to satisfy itself that the averments made in the petition are truthful. If the court is satisfied, it must grant the decree of divorce.

Living Separately – Regardless of Living Under One Roof

In the same judgment, Sureshta Devi v. Om Prakash, the Supreme Court also clarified the meaning of “living separately.” The Court held that “living separately” does not mean residing in different physical spaces. A couple may live under the same roof due to circumstances but still not perform marital obligations — which qualifies as living separately. The core element is the lack of intention to live as husband and wife.

No Waiting Period in Certain Mutual Divorce Cases

Earlier, courts followed a strict 6-month cooling-off period after the first motion of a mutual consent divorce to allow for the possibility of reconciliation. However, this rule has become more flexible with recent judgments.

According to a landmark ruling in Nikhil Kumar v. Rupali Kumar, the Hon’ble Supreme Court held that the 6-month period is not mandatory. The Court clarified that it is at the court’s discretion to waive this period based on the circumstances of the case.

In this case, the couple had been unhappy since their marriage in 2011. The respondent intended to move to New York and could not return within six months. Since both parties clearly understood the consequences and were acting on their free will, the Court waived the cooling-off period and passed the divorce decree immediately.

Conclusion

In conclusion, filing for mutual divorce in India requires a structured legal process. Being prepared with accurate documentation and understanding the timelines is essential. While the process may be emotionally taxing, staying informed and calm can make the journey smoother.

At Rest The Case, our experienced lawyers can guide you at every step, ensuring that your mutual divorce is handled efficiently and with compassion.

Frequently Asked Questions

Q. How long does it take to get a mutual divorce in India?

The timeline for mutual divorce in India typically ranges between 6 to 18 months, depending on factors like court workload, jurisdiction, whether the 6-month cooling-off period is waived, and how quickly both parties appear for hearings.

“In most mutual divorce cases, if all documents are in place and both spouses are cooperative, the process gets completed in about 6 to 8 months. However, if the court doesn't waive the cooling-off period or if either party delays appearing for the second motion, it can stretch up to 18 months.”

— Advocate Vijay Tangri, Delhi-based family lawyer with 25+ years of experience

As per Section 13B(2) of the Hindu Marriage Act, 1955, a mandatory 6-month waiting period is required between the first and second motion of mutual consent divorce. However, this period can be waived at the court’s discretion, based on the facts of the case — as laid down by the Supreme Court in Nikhil Kumar v. Rupali Kumar.

Therefore, while the average timeline is 6 to 18 months, cases where all conditions are met and the court is satisfied with mutual consent may be resolved much sooner.

Read - Divorce Process Duration in India | How Long Does It Take?

Q. How much does it cost for a mutual divorce in India?

The cost of a mutual divorce in India can vary based on factors like the city or state, the court where the petition is filed, lawyer’s fees, and documentation charges. On average, the total cost—including court fees and legal counsel—ranges from ₹10,000 to ₹40,000. However, if both parties hire separate lawyers or the case becomes complicated, the cost can increase.

Q. Can a mutual divorce be granted if one party does not agree to it?

No. Mutual divorce, as the name suggests, requires the free and voluntary consent of both spouses. If one party withdraws consent or does not agree to the terms, the petition becomes invalid, and the matter will have to proceed as a contested divorce under the appropriate personal law.

Q. Can I remarry after obtaining a mutual divorce?

Yes. Once the family court grants a decree of divorce and the marriage is legally dissolved, both parties are free to remarry as per Indian law. It's advisable to keep a certified copy of the divorce decree while registering a future marriage.

About the author

Adv. Vijay Tangri graduated in law in 1994 and joined the LLM program focused on corporate finance and international trade at Northwestern University School of Law Chicago. He began his career in 1995 as a negotiator with a law firm in Chicago and then as part of an investment banking firm in Chicago. From 1999, while being associated with one of the top Senior Advocates of the Supreme Court of India and later with a leading law firm in New Delhi, he has also worked for MNCs such as Accenture, Motorola, and Huawei, as well as a litigating lawyer in the courts of India. He has successfully handled matrimonial cases for over 20 years.

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