Of all the routes out of a marriage that the law provides, divorce by mutual consent is the least adversarial and usually the quickest. But it is not a single hearing, and it is not automatic: the statute prescribes two motions, a waiting period between them, and a judicial satisfaction at each stage. Understood in advance, the procedure is straightforward; misunderstood, it produces avoidable delay and sometimes the collapse of the settlement itself. What follows is how such a petition actually moves through the Family Courts of Delhi.
The statutory requirements
Section 13B of the Hindu Marriage Act, 1955 permits a decree of divorce on a joint petition by both spouses. Three conditions must be pleaded and made out.
The parties have been living separately for a period of one year or more before the petition. Living separately means not living as husband and wife; it can, in a proper case, include spouses under one roof between whom the matrimonial relationship has ended.
They have not been able to live together — the marriage has broken down in fact.
They have mutually agreed that the marriage should be dissolved, and that consent continues until the decree.
The petition is presented to the Family Court within whose jurisdiction the marriage was solemnised, the parties last resided together, or the respondent resides — and, where the wife is the petitioner, also where she is residing. In Delhi, the Family Courts function in the district court complexes, and the appropriate court is identified by these ordinary rules of territorial jurisdiction.
The stages
1. Settlement and drafting
The terms are negotiated and reduced to writing: permanent alimony, the children, the return of articles, and the fate of pending cases. The joint petition annexes the marriage proof, photographs, and the affidavits of both parties.
2. First motion
Both parties appear before the Family Court. Their statements are recorded on oath, confirming separation, the failure of reconciliation and the settlement. The court records its satisfaction and the first motion stands allowed.
3. The interregnum
The second motion may be moved not earlier than six months and not later than eighteen months after the first, unless the six-month period is waived. Terms falling due at this stage — often the first tranche of alimony, or the withdrawal of pending proceedings — should be performed as agreed.
4. Second motion
Both parties appear again and their statements are recorded afresh. The court must be satisfied that consent subsists, that it was not obtained by force, fraud or undue influence, and that the averments are true.
5. Decree
The marriage stands dissolved from the date of the decree. Certified copies should be obtained by both sides; remarriage before the decree is impermissible.
The six-month period and its waiver
The waiting period in Section 13B(2) was designed as a final opportunity for reflection. In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Supreme Court held that the period is directory rather than mandatory, and may be waived where keeping the parties waiting serves no purpose.
The considerations include the length of the marriage and of the separation, whether efforts at reconciliation — including mediation — have failed, whether all issues of alimony, custody and pending litigation stand genuinely settled, and whether further waiting would only prolong the agony. The waiver application is ordinarily moved after the first motion, once the statutory scheme has otherwise been complied with.
In practice, Delhi Family Courts deal with waiver applications regularly, particularly where the settlement has emerged from court-annexed mediation at the Delhi Mediation Centre or in proceedings before the Mahila Court or the High Court. Where the separation has been long and every issue stands resolved, waiver is commonly allowed; where the settlement looks hurried or one-sided, the court may prefer to let the period run.
The settlement deserves as much care as the decree
Most difficulties in mutual consent matters trace back to loosely drafted terms rather than to the procedure itself. The points that should be settled in writing before the first motion is taken:
| Subject | What should be recorded |
|---|---|
| Permanent alimony | The total figure, the tranches, the stage of each payment (commonly split between the two motions), and the mode of payment. |
| Children | Custody, visitation and the responsibility for education and maintenance — the court will examine these arrangements with particular care. |
| Dowry articles and streedhan | What has been returned, what remains, and when it changes hands. |
| Pending proceedings | Each case listed by number and forum, with the stage at which it will be withdrawn or quashing sought, including proceedings under Section 498A IPC / Section 85 BNS or the Domestic Violence Act. |
| Default | What happens if a party fails to perform — including the consequence for the consent yet to be given at the second motion. |
Where criminal proceedings form part of the settlement, their closure is not automatic: withdrawal or quashing must be pursued before the appropriate forum, and the settlement should say who bears that burden and when.
Beyond the Hindu Marriage Act
The mutual consent route is not confined to one statute. Section 28 of the Special Marriage Act, 1954 provides a parallel remedy for civil marriages, and Section 10A of the Divorce Act, 1869 for Christian marriages, each with its own text on separation and waiting periods. Muslim law recognises dissolution by agreement in the forms of khula and mubarat, which proceed differently. The first question in every case is which statute governs the marriage; the procedure follows from the answer.
Frequently Asked Questions
How long does a mutual consent divorce take in Delhi?
The statute fixes the outer frame: the second motion may be moved not earlier than six months after the first, and not later than eighteen months. Where the court waives the six-month period on the principles laid down by the Supreme Court, the two motions can be completed within weeks. Where it does not, roughly seven to eight months from filing to decree is a realistic estimate, subject to the court's board.
Can the six-month waiting period be waived?
Yes. In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Supreme Court held that the period in Section 13B(2) is directory, not mandatory. The court may waive it where there is no prospect of reunion, the parties have genuinely settled all issues including maintenance and custody, and the statutory one-year separation together with the waiting already undergone makes further delay pointless. An application for waiver is ordinarily moved after the first motion.
What if one spouse changes their mind after the first motion?
Consent must subsist until the decree. Either party may withdraw consent before the second motion is allowed, and the court cannot grant a mutual consent divorce over a withdrawn consent; the other spouse is then left to contested remedies. This is why the settlement terms — and the sequence in which payments, withdrawals of cases and the motions occur — should be recorded with precision at the outset.
Is a mutual consent divorce available outside the Hindu Marriage Act?
Yes. Section 28 of the Special Marriage Act, 1954 provides a closely parallel remedy for marriages solemnised or registered under that Act, and Section 10A of the Divorce Act, 1869 provides one for Christian marriages. The structure — a joint petition, two motions and a waiting period — is broadly similar, though the governing text should always be checked.