How to File a Mutual Divorce Petition Under Section 13B of the Hindu Marriage Act: A Complete Legal Guide
Mutual divorce is the most amicable and hassle-free way for legally wedded Hindu couples to dissolve their marriage. When both husband and wife mutually agree that they can no longer live together as a married couple and have been living separately for at least one year, they can file a mutual divorce petition under Section 13B of the Hindu Marriage Act, 1955. This legal provision allows for the dissolution of marriage without any accusations or blame, and ensures dignity, privacy, and fairness for both parties.
In this detailed guide, we will cover who is eligible to file for mutual divorce, what documents are required, the step-by-step procedure to file a petition, the expected time frame, and provide answers to frequently asked questions related to mutual divorce in India.
Eligibility to File Mutual Divorce Under Section 13B of the Hindu Marriage Act
To file a mutual divorce under Section 13B, both parties must satisfy the following eligibility criteria:
- Marriage must be solemnized under Hindu law – This includes Hindus, Buddhists, Jains, and Sikhs.
- Minimum separation of one year – The couple must have lived separately for at least one year before filing the petition.
- Mutual consent – Both spouses must agree voluntarily and willingly to end the marriage.
- No coercion or undue influence – Consent must not be obtained under force, threat, or pressure.
- Irretrievable breakdown of marriage – The couple must believe that they are unable to live together as husband and wife.
Documents Required for Mutual Divorce
When filing a mutual divorce petition, the following documents are generally required:
- Marriage certificate (issued by the registrar)
- Address proof of both husband and wife (Aadhaar card, passport, voter ID, etc.)
- Passport-sized photographs of both parties
- Photographs or invitation card of the marriage
- Proof of separation – May include affidavits, rental agreements, or anything indicating separate residence
- Income proof and salary slips
- Details of movable and immovable property (if any)
- Statement of settlement – Mentioning alimony, custody of children, maintenance, etc., if agreed upon
Step-by-Step Procedure to File a Mutual Divorce Petition
Here is a step-by-step court procedure for filing a mutual divorce petition under Section 13B of the Hindu Marriage Act:
Step 1: Consultation and Drafting of Petition
Both parties consult a lawyer and jointly sign the first motion petition under Section 13B(1), mentioning:
- Date and place of marriage
- Separation details
- Reasons for seeking divorce
- Settlement terms (alimony, child custody, etc.)
The petition is filed in the Family Court or District Court having jurisdiction where:
- The couple last lived together, or
- The wife resides currently, or
- The marriage was solemnized
Step 2: First Motion Hearing
- The court records the joint statement of both spouses.
- Judge verifies whether the consent is mutual and free of coercion.
- Evidence such as photographs and documents are presented.
- Court may refer parties to mediation (though optional in mutual divorce).
Step 3: Cooling-Off Period
- As per Section 13B(2), a minimum 6-month cooling-off period is required after the first motion.
- The purpose is to give the couple time to reconsider reconciliation.
- However, Supreme Court in Amardeep Singh v. Harveen Kaur (2017) allowed the waiver of this 6-month period under certain conditions.
Step 4: Second Motion Petition
- After 6 months (or earlier, if waived), the couple files the second motion petition confirming their intent to proceed with the divorce.
- Fresh statements are recorded.
- If the court is satisfied that the marriage is irretrievably broken and all settlement terms are agreed upon, it passes the final decree of divorce.
Time Frame for Mutual Divorce in India
- Minimum Time: 6 months (if the cooling-off period is not waived)
- With Waiver: As early as 1 to 2 months, depending on the court’s discretion
- Average Time: 6 to 12 months
The actual time taken depends on factors like court workload, mutual cooperation, availability of documents, and whether the cooling-off period is waived.
Frequently Asked Questions (FAQs)
Q1. Can the 6-month cooling-off period be waived in mutual divorce?
Yes, as per the Supreme Court judgment in Amardeep Singh v. Harveen Kaur (2017), the cooling-off period can be waived by the court if:
- All efforts of reconciliation have failed
- Parties have settled all issues including alimony and custody
- The court is convinced that the marriage has irretrievably broken down
Q2. Is physical separation mandatory to file mutual divorce?
Yes, both spouses must be living separately (not necessarily in different cities) for a minimum of one year, which indicates emotional and physical detachment.
Q3. Can mutual divorce be withdrawn after filing the first motion?
Yes, either party can withdraw their consent anytime before the final decree. If one spouse withdraws consent before the second motion, the mutual divorce petition will be dismissed.
Q4. What happens if one party does not appear for the second motion?
If one spouse fails to appear or revokes consent during the second motion, the petition will not be granted, and the couple must explore contested divorce under other grounds.
Q5. Is it necessary to hire a lawyer for mutual divorce?
While it’s not mandatory, engaging a lawyer helps in proper drafting of the petition, handling documentation, negotiations, and ensuring court compliance.
Q6. Can mutual divorce be filed online in India?
Partially yes. Some states allow e-filing of the petition on the official court portals, but physical presence is required for recording statements and final decree.
Q7. Is alimony compulsory in mutual divorce?
No, alimony is not compulsory. It is a matter of mutual agreement. If both parties waive the right to alimony, the court will not interfere.
Conclusion
Mutual divorce under Section 13B of the Hindu Marriage Act offers a peaceful and respectful exit for couples who have mutually agreed to part ways. It avoids the complexities, delays, and bitterness often associated with contested divorce proceedings. The essential elements are mutual agreement, one-year separation, and absence of coercion.
Filing for mutual divorce involves careful drafting, legal documentation, court hearings, and sometimes negotiations on maintenance or child custody. Seeking legal counsel is always advisable to ensure a smooth and fair legal process.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304