Mutual Consent Divorce under Section 13B: Separation, Consent and Waiver

The first and second motions

The joint petition is commonly called the first motion. Under Section 13B(2), both parties, not either spouse acting alone, must move the court for the decree. The statutory window for that motion is not earlier than six months and not later than eighteen months after presentation of the petition, unless the six-month waiting requirement is waived.

The court must hear the parties, make the necessary inquiry and be satisfied that the statutory conditions are met. Filing a settlement or attending the first motion does not itself dissolve the marriage; dissolution takes effect through the decree.

Can the six-month period be waived?

In Amardeep Singh v. Harveen Kaur, decided on 12 September 2017, the Supreme Court held that the six-month waiting period is directory and can be waived in appropriate cases. The court considers whether reconciliation has failed, whether the parties have genuinely settled issues such as alimony and child custody, and whether further waiting would merely prolong their difficulty.

The waiver is discretionary. Amit Kumar v. Suman Beniwal, decided on 11 December 2021, explains that the factors in Amardeep Singh must not be treated as an inflexible statutory checklist. Relevant circumstances include the duration of the marriage and separation, pending litigation, prospects of reconciliation, children and the genuineness of a voluntary settlement. A waiver application does not guarantee an immediate decree.

Read Amardeep Singh, paragraphs 18–22 and Amit Kumar, paragraphs 22–27.

Consent must continue until the decree

In the ordinary Section 13B process, mutual consent must subsist until the court passes the decree. A spouse is not irrevocably bound to consent merely because the first motion or settlement has been signed. It is incorrect to say that withdrawal is possible only before the second motion, or only on proof of coercion.

Withdrawal of consent and the consequences of a settlement are distinct questions. Where consent no longer exists, an ordinary mutual-consent decree cannot simply be assumed.

The Supreme Court's Article 142 power is different

Shilpa Sailesh v. Varun Sreenivasan, decided on 1 May 2023, addresses the Supreme Court's exceptional power under Article 142 to dissolve a marriage, including on irretrievable breakdown in appropriate circumstances. It does not give every Family Court a general power to grant divorce on that ground or dispense with continuing consent in an ordinary Section 13B case.

The Constitution Bench also rejected using a direct writ petition under Article 32 or Article 226 to bypass the prescribed matrimonial process. See Shilpa Sailesh, discussion of Section 13B and paragraphs 40–42.

Before filing

Record the actual marriage and separation dates, the agreed financial arrangements, arrangements for children and the status of related proceedings. Check the competent court, its filing requirements and whether a reasoned waiver application is appropriate. Avoid promises of a fixed completion time: the decree depends on statutory compliance, genuine continuing consent and the court's satisfaction.

Correction — 20 October 2026: Corrected the one-year separation requirement, joint second motion and continuing consent; clarified waiver and the separate Article 142 power, and corrected case names.