Divorce by Mutual Consent Under Section 13B
Section 13B of the Hindu Marriage Act, 1955 permits both spouses to jointly seek dissolution of their marriage when the statutory requirements are fulfilled. The petition should be adapted to the facts of the parties, the applicable High Court/Family Court rules and local filing practice.
Where can the petition be filed?
Jurisdiction is governed principally by Section 19 of the Hindu Marriage Act. Depending on the facts, a petition may be presented to the competent District Court/Family Court within whose jurisdiction the marriage was solemnised, the respondent resides, or the parties last resided together. Section 19 also contains additional jurisdictional rules, including a specific provision for a wife filing where she resides. Where a Family Court has been established for the area, the Family Courts Act, 1984 governs its matrimonial jurisdiction.
Draft Mutual Consent Divorce Petition - First Motion
This specimen is a general drafting aid. Replace bracketed fields, delete inapplicable clauses and add settlement terms required by the facts and the practice directions/rules of the court where the petition is filed.
BEFORE THE PRINCIPAL JUDGE, FAMILY COURT AT __________
H.M.A. PETITION NO. ____ OF 20__
IN THE MATTER OF:
JOINT PETITION UNDER SECTION 13B(1) OF THE HINDU MARRIAGE ACT, 1955 FOR DISSOLUTION OF MARRIAGE BY MUTUAL CONSENT
MOST RESPECTFULLY SHOWETH:
- That the marriage between the Petitioners was solemnised on __________ at __________ according to Hindu rites and ceremonies. The marriage was thereafter consummated and the parties lived together as husband and wife at __________.
- That the particulars of the parties before and after marriage are as follows:
| Particulars | Petitioner No. 1 | Petitioner No. 2 |
|---|---|---|
| Age / Date of Birth | __________ | __________ |
| Address before marriage | __________ | __________ |
| Present address | __________ | __________ |
| Occupation / status | __________ | __________ |
- That [no child was born from the wedlock / the following child or children were born from the wedlock: __________].
- That due to serious temperamental differences and incompatibility, the parties have been unable to live together as husband and wife despite efforts at reconciliation.
- That the parties have been living separately since __________, a period of one year or more immediately preceding the presentation of this petition, and have not been able to live together.
- That all reasonable efforts at reconciliation have failed and the parties have mutually and voluntarily agreed that the marriage should be dissolved by a decree of divorce by mutual consent.
- That the parties have settled their matrimonial disputes and claims on the following terms:
(a) Permanent alimony/maintenance: __________.
(b) Stridhan, jewellery, articles and personal belongings: __________.
(c) Custody, access/visitation and expenses relating to the child/children, if any: __________.
(d) Joint property, bank accounts, loans or other financial liabilities, if any: __________.
(e) Pending civil/criminal/matrimonial proceedings or complaints and the agreed steps regarding them: __________.
(f) Any other settlement term: __________. - That the consent of each Petitioner to this petition is free and voluntary and has not been obtained by force, fraud, coercion or undue influence.
- That the present petition is not presented in collusion for any improper purpose and there is no legal impediment to granting relief under Section 13B, subject to the satisfaction of this Hon'ble Court.
- That no other matrimonial proceeding between the parties is pending except [give details / state “Nil”].
- That this Hon'ble Court has territorial jurisdiction because [the marriage was solemnised within its jurisdiction / the respondent resides here / the parties last resided together here / other applicable ground under Section 19].
- That the Petitioners undertake to comply with the settlement terms and to make the further joint motion in accordance with Section 13B(2), subject to any order lawfully waiving the waiting period.
PRAYER
In these circumstances, the Petitioners respectfully pray that this Hon'ble Court may be pleased to:
(a) take this joint petition under Section 13B(1) of the Hindu Marriage Act, 1955 on record;
(b) record the statements and settlement of the parties in accordance with law;
(c) upon fulfilment of the requirements of Section 13B(2), and upon the Court being satisfied as required by law, pass a decree dissolving the marriage between the Petitioners by mutual consent; and
(d) pass such other or further order as this Hon'ble Court may deem fit and proper in the circumstances of the case.
Place: __________
Date: __________
Signature: __________
Signature: __________
Verification
We, the above-named Petitioners, verify that the contents of paragraphs 1 to ___ of this petition are true and correct to our knowledge and belief, that nothing material has been concealed, and that the settlement stated above has been entered into voluntarily.
Verified at __________ on this ___ day of __________ 20__.
Signature: __________
Signature: __________
Documents Commonly Filed With a Mutual Consent Divorce Petition
Document requirements vary by court and local rules. Commonly required or useful documents include:
- Affidavits of both Petitioners supporting the joint petition.
- Marriage certificate, if available, and/or proof of solemnisation of marriage.
- Marriage photographs, where required or relied upon.
- Identity and address proof of both parties.
- Proof concerning the date from which the parties have been living separately, where relevant.
- Settlement/mediation agreement, if separately executed.
- Documents concerning alimony, payment, custody, property, return of articles or pending proceedings, where those terms form part of the settlement.
- Passport-size photographs and any filing forms required by the concerned Family Court or District Court.
Court rules and filing practices differ across States, Union Territories and individual Family Courts. The registry requirements of the competent court should be checked before filing.
Waiver of the Six-Month Waiting Period
Section 13B(2) contains a six-month interval before the second motion. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that this period is directory, not mandatory, and may be waived where the circumstances justify waiver. In Amit Kumar v. Suman Beniwal (2021), the Supreme Court reiterated that courts must exercise discretion on the facts rather than treat earlier illustrative factors as rigid statutory conditions.
A waiver is therefore not automatic. Parties seeking it should make an appropriate application before the competent court explaining the circumstances, the settlement of outstanding issues and why further waiting would serve no useful purpose.
Official Legal Resources
Frequently Asked Questions
Is mutual consent divorce filed under Section 13(1)(i-b)?
No. Section 13(1)(i-b) relates to desertion. Divorce by mutual consent is governed by Section 13B of the Hindu Marriage Act, 1955.
Must the spouses be living separately for one year before filing?
Section 13B(1) requires the parties to have been living separately for one year or more, to have been unable to live together and to have mutually agreed to dissolve the marriage.
Is the six-month cooling-off period compulsory in every case?
No. The Supreme Court has held the period to be directory. A competent court may waive it in an appropriate case after considering the relevant circumstances.
Can the Family Court grant divorce only because the marriage has irretrievably broken down?
Irretrievable breakdown is not by itself a statutory ground available to an ordinary Family Court under the Hindu Marriage Act. A petition under Section 13B must satisfy the requirements of mutual consent prescribed by that section.