आपसी सहमति से तलाक: पूरी प्रक्रिया, दस्तावेज़ और छह महीने की छूट
At a glance
- Law
- S. 13B HMA · S. 28 SMA · S. 10A Divorce Act
- Who
- Spouses living apart for 1 year or more who both agree
- Where
- Family Court having jurisdiction
- Time
- 6–8 months · 1–2 months if waived
What it is
A divorce granted by the Family Court when husband and wife jointly agree that the marriage should end. They also agree on terms such as alimony, child custody and return of articles. It is the quickest and least contentious route to a divorce.
Who can apply
- Hindus, Buddhists, Jains and Sikhs: Section 13B of the Hindu Marriage Act, 1955
- Marriages under the Special Marriage Act: Section 28 of that Act
- Christians: Section 10A of the Divorce Act, 1869 (requires at least two years' separation)
- Under the Hindu Marriage Act and the Special Marriage Act, the spouses must have lived separately for at least one year and must agree that they have been unable to live together.
Step-by-step process
- 1
Settlement
The spouses agree in writing on permanent alimony (amount and mode of payment), custody and visitation of children, return of stridhan and articles, and withdrawal of all pending cases between them.
- 2
First motion
A joint petition supported by affidavits is filed before the Family Court having jurisdiction, ordinarily where the marriage was solemnised, where the parties last lived together, or where the wife resides. Both parties appear and their statements are recorded.
- 3
Cooling-off period
The law provides six months between the first and second motion so that the parties may reconsider.
- 4
Second motion
After six months, and within eighteen months, of the first motion, both parties again appear and confirm their consent.
- 5
Decree
If satisfied that consent is free and the terms are lawful, the Court passes a decree of divorce. Alimony is ordinarily paid or handed over by demand draft at this stage.
Waiver of the six-month period
In Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, the Supreme Court held that the six-month period is directory, not mandatory. The Family Court may waive it where:
- the parties have already lived apart for more than one and a half years (including the one year before filing);
- mediation and reconciliation efforts have failed; and
- all issues of alimony, custody and pending cases are genuinely settled.
Documents required
Checklist · 8 items- Proof of marriage: marriage certificate, wedding card or photographs
- Address and identity proof of both parties
- Recent photographs of both parties, and joint photographs where available
- Written settlement / memorandum of understanding signed by both
- Affidavits of both parties
- Income and asset details where alimony is to be paid
- Copies of all pending cases between the parties, with case numbers
- Birth certificates of children, if any
Time usually taken
6 to 8 months from the first motion
Ordinarily six to eight months from the first motion. Where the cooling-off period is waived, the decree may be passed within one to two months.
Points to remember
- 01Either party may withdraw consent before the decree is passed; the divorce cannot then be granted by mutual consent.
- 02Criminal cases between the spouses, such as cases of cruelty or dowry, are not closed by the divorce decree itself. They are ordinarily ended by compounding, withdrawal, or a quashing petition before the High Court on the basis of the settlement.
- 03The decree does not take away the children's right to maintenance from either parent.
Frequently asked questions
Can the six-month waiting period in a mutual consent divorce be waived?
Yes. In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held the period directory, not mandatory. The Family Court may waive it where the parties have lived apart for more than one and a half years, mediation has failed, and alimony, custody and pending cases are genuinely settled.
How long does a mutual consent divorce take?
Ordinarily six to eight months from the first motion. Where the cooling-off period is waived, the decree may be passed within one to two months.
Can a spouse withdraw consent after the first motion?
Yes. Either party may withdraw consent before the decree is passed, and the divorce cannot then be granted by mutual consent.
Does the divorce decree close a pending cruelty or dowry case?
No. Such cases are ordinarily ended by compounding, withdrawal, or a quashing petition before the High Court on the basis of the settlement.
About the author
Advocate Vivekanand
Founder & Principal Advocate, Vivekanand Law Firm · MA (English), MBA, LL.B., Author. Full profile
Disclaimer. This publication is for general legal information and education only. It is not legal advice on any particular matter and does not create an advocate-client relationship. Procedures, fees and time limits change from time to time and may differ from office to office; verify the current position before acting.
यह प्रकाशन केवल सामान्य कानूनी जानकारी और शिक्षण के लिए है; यह किसी विशेष मामले में कानूनी सलाह नहीं है, और इससे अधिवक्ता-मुवक्किल संबंध नहीं बनता।
— Adv. Vivekanand, Motihari
Related practice
Matrimonial and Family Disputes