The two motions, the waiting period and how it is waived, the eighteen-month limit nobody mentions, what the Supreme Court can do that no other court can, why a pending cruelty case cannot simply be withdrawn, and how a mutual consent petition is actually run in the Delhi Family Courts.
Section 13B of the Hindu Marriage Act lets a couple dissolve their marriage by agreement. They file a joint petition saying they have been living separately for a year or more, have not been able to live together, and have agreed the marriage should be dissolved. That is the first motion. The second motion comes not earlier than six months later and not later than eighteen months — miss that outer limit and the petition lapses.
"Living separately" does not mean living at different addresses. It means not living as husband and wife.
The six months can be waived — the Supreme Court held in 2017 that it is directory, not mandatory. But the condition everyone misquotes is that the six months and the one year must be already over before the first motion itself. And in December 2025 a Full Bench of the Delhi High Court went further, holding that the one-year period can also be waived.
Consent must last until the decree. If one party withdraws before the second motion, no decree can be passed, and no court can compel consent.
Irretrievable breakdown is not a ground. Only the Supreme Court can dissolve on it, under Article 142 — and you cannot approach it directly asking for that.
A pending cruelty case cannot simply be withdrawn. Section 85 BNS is not compoundable. It has to be quashed by the High Court, and only after the settlement has actually been performed.
The section has two sub-sections and they describe two appearances in court, separated by a gap.
| Stage | What happens | What must be true |
|---|---|---|
| First motion | A joint petition is presented to the district court by both spouses together, and their statements are recorded | They have been living separately for one year or more; they have not been able to live together; and they have mutually agreed that the marriage should be dissolved |
| The gap | A statutory waiting period | Not earlier than six months after the petition is presented |
| Second motion | Both appear again; the court hears them, makes such inquiry as it thinks fit, and satisfies itself that the marriage was solemnised and that the averments are true | Not later than eighteen months after presentation; and the petition must not have been withdrawn in the meantime |
| Decree | The court declares the marriage dissolved | The decree operates from its own date |
This is the requirement people wrongly believe they fail, and it stops couples from filing for months.
"'Living separately' connotes ... not living like husband and wife. It has no reference to the place of living."
So a couple who continue to share a flat — because of the children, because of money, because neither can move out — can still satisfy the requirement, provided they have not been living as husband and wife. The Delhi High Court and later Supreme Court decisions have followed the same line.
Everyone knows about the six months. Very few pages mention the other end of the window.
The second motion must be made within eighteen months of the petition being presented. If that period passes — because one party was travelling, because the settlement money was delayed, because the matter simply drifted — the petition lapses, and the couple has to start again with a fresh first motion.
Mutual consent is not a box ticked at the start. It is the foundation of the court's jurisdiction, and it has to be there when the decree is passed.
"Mutual consent should continue till the divorce decree is passed."
"It is only on the continued mutual consent of the parties that decree for divorce under Section 13B ... can be passed."
So if either party withdraws consent before the second motion, the court cannot pass a decree of divorce by mutual consent. The petition does not convert into a contested one; that is a separate proceeding on statutory grounds.
In 2017 the Supreme Court held that the six-month period is directory and not mandatory, and can be waived by the court. It set out four conditions.
| # | The condition |
|---|---|
| 1 | The six-month period and the one year of separation required by Section 13B(1) are already over before the first motion itself |
| 2 | All efforts at mediation and conciliation have failed and there is no likelihood of success |
| 3 | The parties have genuinely settled their differences, including alimony, custody of children and any other pending issues |
| 4 | The waiting period will only prolong their agony |
On procedure, the Court said the waiver application should be a separate application, giving reasons, filed not earlier than one week after the first motion. And it was explicit that whether to allow it is in the discretion of the court — satisfying the conditions makes you eligible, not entitled.
The same judgment also recognised that proceedings may be conducted by video conferencing, and that where a party genuinely cannot attend, representation through close relations such as parents or siblings may be considered.
In December 2025 a Full Bench of the Delhi High Court decided a question the 2017 judgment had not: whether the one-year separation period in Section 13B(1) can itself be waived.
Its conclusions, in summary:
This is where the most damage is done by bad information, because it sends people to the wrong court.
Irretrievable breakdown of marriage is not a ground for divorce in the Act. Parliament has never enacted it. What exists is the Supreme Court's power under Article 142 of the Constitution to do complete justice, and in May 2023 a five-judge Constitution Bench confirmed how far that reaches.
| Relief | Family Court | High Court | Supreme Court |
|---|---|---|---|
| Waive the six months under 13B(2) | Yes | Yes | Yes |
| Waive the one year under 13B(1) — on the Delhi Full Bench view | Yes | Yes | Yes |
| Dispense with the Section 13B procedure altogether | No | No | Yes — under Article 142 |
| Dissolve on irretrievable breakdown | No | No | Yes — under Article 142 |
The Court described the relief as "not a matter of right, but a discretion which is to be exercised with great care and caution". And it dealt expressly with the obvious question — can a couple simply go to the Supreme Court and ask?
Among the factors the Court listed: how long the couple cohabited, when they last cohabited, the nature of the allegations against each other and their families, the orders already passed and their cumulative effect, attempts at settlement, the period of separation — six years or more being among the considerations — the parties' economic and social circumstances, the children and their welfare, and whether alimony is adequate.
Where spouses live in different cities and proceedings are pending in one of them, one of them may file a petition in the Supreme Court to transfer the case. In practice, those matters are frequently referred to mediation, and where the couple settles, the Supreme Court dissolves the marriage by consent using its Article 142 power — dispensing with the waiting period entirely.
That is a real route and it is still used. But note what it is: it arises out of a proceeding that already exists, not out of an application asking the Supreme Court to grant a divorce.
Section 13B is the Hindu Marriage Act. If you married under a different law, that Act's own provision applies — and the periods differ.
| Law | Provision | Separation required | Waiting period |
|---|---|---|---|
| Hindu Marriage Act, 1955 | Section 13B | 1 year | 6 months, waivable; outer limit 18 months |
| Special Marriage Act, 1954 | Section 28 | 1 year | 6 months; outer limit 18 months |
| Divorce Act, 1869 (Christians) | Section 10A | 2 years | 6 months; outer limit 18 months |
| Parsi Marriage and Divorce Act, 1936 | Section 32B | 1 year | None — no second motion; but no suit within one year of the marriage |
| Muslim personal law | Mubarat (mutual), khula (at the wife's instance) | None | None — but extra-judicial, so proof is the practical problem |
Two further points. The Christian provision still reads two years — a High Court has read it down, but that decision binds only that State, and Parliament has not amended the Act. And on Muslim law: talaq-e-biddat — the instant triple talaq — is void, illegal and criminal under the 2019 Act; khula, mubarat and the other recognised forms are unaffected, a distinction many pages blur.
Settlement is not paperwork that follows the divorce. Under the 2017 judgment it is a precondition of any waiver, and the Constitution Bench treats it as a factor too. Deal with all of it before the first motion.
| Item | What to get right |
|---|---|
| Alimony | Draft the figure as being in full and final satisfaction of every maintenance claim — under the criminal code, the Domestic Violence Act and the marriage laws. Deal expressly with arrears, because maintenance runs from the date of the application. Disclose any earlier maintenance order: the later court sets it off. See our page on maintenance under Section 144 BNSS |
| Custody and visitation | Set out an actual schedule — days, timings, holidays, travel, school events. But be realistic: custody is never final against the welfare of the child, and can be revisited |
| Stridhan and articles | Hand it over and record it as done, with a receipt filed in court — not as a promise for later. See our page on Section 316 BNS |
| Pending civil and criminal cases | List every one of them by number and court, and state exactly what will happen to each. The criminal ones need care — see the next section |
| Property and joint liabilities | Joint accounts, loans, guarantees, insurance nominations, the rented flat's deposit — the items that surface a year later |
Most mutual-consent settlements in Delhi involve a pending case for cruelty. The instinct is to write "the complainant shall withdraw the FIR". That does not work, and the reason is structural.
Section 85 BNS is not compoundable. It does not appear in either of the compounding tables in the BNSS, and the Code is explicit that no offence may be compounded except as that provision allows. A Magistrate therefore cannot close the case, however willing both sides are.
The route is a petition to the High Court to quash the FIR and the proceedings on the basis of the settlement. The Supreme Court has held that matters of an overwhelmingly civil flavour — expressly including matrimonial and dowry disputes — stand on a different footing from heinous offences, and may be quashed on a settlement.
The usual sequence in Delhi is to time the quashing petition to the second motion, with both parties present before the High Court and the complainant's statement recorded. Our page on Section 528 BNSS sets out exactly what that court asks for.
It happens, usually after the money has been paid and before the second motion. The legal position is uncomfortable but worth knowing in advance, because it shapes how the settlement should be built.
A mutual consent petition stands or falls on its papers — the joint petition, the settlement, the affidavits and the proof that what was agreed has actually been done. Legal Space Services prepares and files matrimonial documentation in Delhi. Ordering is free and you pay only after the work is done. For advice on your own facts, speak to an advocate.
Start your mutual divorce papers +91 98913 43962The petition goes to the Family Court of the district — not the ordinary district court, which is excluded where a Family Court exists.
Where you may file: where the marriage was solemnised; where the respondent resides; where the parties last resided together; or where the wife resides.
Delhi's Family Courts sit at Tis Hazari, Patiala House, Karkardooma, Rohini, Dwarka and Saket. Rouse Avenue has none. Confirm which one applies to your matter at the filing counter or from the Delhi District Courts website.
Delhi's district court complexes have mediation centres, and there is a mediation centre at the High Court. Legal services authorities also run pre-litigation matrimonial counselling.
The court fee on a divorce petition is nominal. The Delhi District Courts users' handbook states a figure of fifteen rupees for a divorce petition; the handbook is undated, so treat it as an indication and confirm at the counter. We will not publish a total cost or a professional fee figure — those vary enormously and every number we could find online was unsourced. Ask for a written breakdown covering drafting, the first motion, the second motion and any quashing petition, which are separate pieces of work.
A change that has not reached most pages: the Delhi Family Courts rules were amended, with the amendment notified in January 2025, to require that all matrimonial pleadings carry an affidavit of assets, income and expenditure in the format annexed to the rules. It is Delhi's implementation of the Supreme Court's 2020 direction on disclosure in maintenance matters.
The same amendment introduced a procedure for preserving sensitive documents in a sealed cover.
This page explains the law in general terms. It cannot tell you what to do about your own facts — only an advocate who has read your papers can do that. You can look through the advocates associated with Legal Space Services who practise in family and matrimonial matters, see their enrolment details and areas of practice, and send a consultation request. Searching and sending a request are free.
Both parties must ordinarily appear in person for their statements to be recorded, at both motions. For a spouse living overseas that is two trips, and the questions that follow are predictable.
| Question | Position |
|---|---|
| Can we use video conferencing? | The Supreme Court has held that video conferencing is not available at the reconciliation stage. Once settlement efforts have failed, it can be allowed — ordinarily on a joint application with both parties consenting. Courts have been increasingly willing where the alternative is real hardship |
| Can a power of attorney appear for me? | A power of attorney by itself is not a substitute for the party's own statement. The reliable route is an application for exemption from personal appearance together with video conferencing |
| Can a relative represent me? | The 2017 judgment recognised that genuine representation through close relations such as parents or siblings may be considered. It is a discretion, not a right |
A separate and consequential question: you were married in India under the Hindu Marriage Act, you now live abroad, and you obtain a divorce there. Is it valid in India?
"The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married."
The Court recognised limited exceptions — where the respondent is domiciled or habitually resident in that country; where the respondent voluntarily and effectively submits to that court's jurisdiction and contests on a ground available under the law the parties married under; or where the respondent consents to the relief.
Two questions asked at the end of every mutual-consent case, and the first is commonly answered wrongly.
The appeal period against a Family Court decree in Delhi is thirty days, not ninety. Where a Family Court exists, the Family Courts Act displaces the longer period in the marriage law. The Delhi High Court has so held. Delay can be condoned, but do not plan on it.
Remarriage is lawful once there is no right of appeal; or the appeal period has expired and no appeal has been filed; or an appeal has been filed and dismissed. In practice that means: wait out the thirty days, then obtain the certified copy of the decree, and keep it. The equivalent provisions apply under the Special Marriage Act and the Christian law.
Where the other side will not agree, the route is a contested petition on a statutory ground. Briefly, the grounds under the Act include adultery, cruelty, desertion for two years or more, conversion, unsoundness of mind or mental disorder of the kind the Act describes, venereal disease in a communicable form, renunciation of the world, and not having been heard of as alive for seven years. There are additional grounds available to a wife. There is also a ground where there has been no cohabitation for a year after a decree of judicial separation, or no restitution for a year after a decree for restitution of conjugal rights.
A contested divorce is a different undertaking altogether — evidence, cross-examination, and years rather than months. That is why couples who can agree are almost always better served by settling the terms and using Section 13B, even where the settlement costs something to reach.
It is divorce by mutual consent under the Hindu Marriage Act. Both spouses file a joint petition saying they have been living separately for a year or more, that they have not been able to live together, and that they have agreed the marriage should be dissolved. That is the first motion. After a gap, they appear again — the second motion — and the court passes the decree.
One year or more before the petition is filed. And "living separately" does not mean living at different addresses — the Supreme Court held long ago that it means not living as husband and wife, and has no reference to the place of living. Couples sharing a house because of children or money are not disqualified.
The second motion cannot be made earlier than six months after the first, and not later than eighteen months. That outer limit is real — if you let eighteen months pass, the petition lapses and you start again.
Yes, and this is the part people do not expect. Consent must continue right up to the decree. A three-judge Bench of the Supreme Court has said in terms that mutual consent should continue till the decree of divorce is passed. If one party withdraws before the second motion, the court cannot pass the decree.
The court cannot force consent. The Delhi High Court, sitting as a Full Bench, has held that a party cannot be compelled to give consent for the second motion, and that refusing is not by itself contempt. But an undertaking recorded in a court order is different, and the rest of the settlement continues to bind. That is why the way the settlement is structured matters more than its wording.
Yes. In 2017 the Supreme Court held that the six-month period is directory, not mandatory, and can be waived. But it is a discretion, not an entitlement, and there are conditions.
Four. That the six months and the one year of separation are already over before the first motion itself. That all efforts at mediation and conciliation have failed with no likelihood of success. That the parties have genuinely settled everything — alimony, custody and any other pending issues. And that waiting will only prolong their agony.
No — and this is the most common error on the internet about this subject. The condition is the one year plus the six months already elapsed before you file. Pages that reduce it to "separated for a year" are describing something the Supreme Court did not say.
By a separate application giving reasons, which the Supreme Court said should not be filed earlier than one week after the first motion. Whether to allow it is for the court.
In Delhi, yes. In December 2025 a Full Bench of the Delhi High Court held that the one-year period can itself be waived, that the two waivers are independent of each other, and that a decree may then be made effective forthwith. It also said waiver is not to be granted merely for the asking — it requires exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. Because this is recent, ask your advocate to confirm its current standing before you rely on it.
Only from the Supreme Court. Irretrievable breakdown is not a ground in the Act. A five-judge Bench held in 2023 that the Supreme Court can dissolve a marriage on that ground using its power under Article 142 — but no Family Court and no High Court can do it, because they have no such power.
No, and this is the holding most often left out. The same judgment said parties should not be permitted to file a writ petition seeking divorce on the ground of irretrievable breakdown. It also said the relief is not a matter of right but a discretion to be exercised with great care and caution. It usually arises in a matter already before the Court — most often a transfer petition.
How long the couple cohabited, when they last cohabited, the nature of the allegations, the orders already passed and their cumulative effect, whether settlement was attempted, the period of separation — a separation of six years or more is among the factors — the parties' circumstances, the children and their welfare, and whether alimony is adequate.
No, and getting this wrong wastes months. Cruelty under Section 85 BNS — the old 498A — is not compoundable, so a Magistrate cannot close it even if both sides agree. The route is a petition to the High Court to quash it, and the courts allow that in settled matrimonial matters. See our pages on Section 85 and Section 528 BNSS.
Not if the settlement has not actually been performed. The Delhi High Court has refused quashing where a settlement "was never implemented or executed", and has said that merely depositing cheques or fixed deposits that have not been released does not amount to execution. Perform first, then ask.
The Family Court of the district. In Delhi, Family Courts sit at Tis Hazari, Patiala House, Karkardooma, Rohini, Dwarka and Saket. You can file where the marriage was solemnised, where you last resided together, where the respondent resides, or where the wife resides.
Often not, but do not assume. The Supreme Court has held that video conferencing is not available at the reconciliation stage; once settlement efforts have failed it can be allowed, ordinarily on a joint application with both parties consenting. A power of attorney by itself is not a substitute for your own statement — the reliable route is an application for exemption from personal appearance together with video conferencing.
Once there is no right of appeal, or the appeal period has expired without an appeal being filed, or an appeal has been dismissed. In Delhi the appeal period against a Family Court decree is thirty days, not ninety — the Family Courts Act displaces the longer period where a Family Court exists. Wait it out and get the certified copy of the decree before you remarry.
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