Hindu Marriage Act, 1955 · Section 13B · Divorce by Mutual Consent

Section 13B of the Hindu Marriage Act, 1955 — Divorce by Mutual Consent

Section 13B is the provision of law that allows a husband and wife in India to dissolve their marriage legally without either of them having to prove fault, cruelty, or wrongdoing against the other. Everything that people call "mutual divorce" in India flows from this single statutory provision — the joint petition, the two court hearings, the cooling-off period, the consent requirement, and the divorce decree.

This page covers Section 13B in full — the exact text of the law, what every phrase means in plain language, the procedural sequence it creates, the conditions that must be met, the landmark Supreme Court judgments that have shaped its application, and answers to the most important legal and practical questions about it.

1 Year
Separation required
6 Months
Cooling-off period
18 Months
Maximum outer limit
2 Hearings
Mandatory appearances
1976
Year inserted
Contents of This Page
  1. The Bare Act Text
  2. Word-by-Word Plain Language
  3. The Three Conditions
  4. Who Section 13B Applies To
  5. The Step-by-Step Procedure
  6. What the Settlement MoU Must Cover
  7. The Cooling-Off Period and Waiver
  8. Withdrawal of Consent
  9. Jurisdiction — Where to File
  10. What Section 13B Does Not Do
  11. Section 13B vs Section 13 — The Difference
  12. Landmark Judgments
  13. Frequently Asked Questions
Section 1

Section 13B — The Exact Text of the Law

This is Section 13B of the Hindu Marriage Act, 1955 as it currently stands in the statute, reproduced verbatim.

Section 13B. Divorce by mutual consent.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Legislative note: Section 13B was inserted into the Hindu Marriage Act, 1955 by Section 13 of the Marriage Laws (Amendment) Act, 1976 (Act 68 of 1976). It came into force on 27 May 1976. The provision applies irrespective of whether the marriage was solemnised before or after that date — this is expressly stated in sub-section (1) itself.
Section 2

What Section 13B Means — Word by Word, in Plain Language

"Both the parties to a marriage together"

For Legal Professionals

The petition must be filed jointly. A mutual consent divorce cannot be initiated by one spouse alone. Both husband and wife must approach the court together and be named as petitioners in the same petition — fundamentally different from Section 13 where one spouse files against the other.

For Couples

If your spouse is not willing to file with you, Section 13B is not available regardless of how long you have been separated. Your option is a contested divorce under Section 13. Read our page on what to do when your spouse is not agreeing to divorce.

"They have been living separately for a period of one year or more"

For Legal Professionals

The Supreme Court in Sureshta Devi v. Om Prakash (AIR 1992 SC 1904) interpreted "living separately" as connoting not living as husband and wife — it has no reference to the place of living. Parties may live under the same roof by force of circumstances and yet not be living as husband and wife. The one year must be continuous and immediately before filing.

For Couples

You do not have to live in different houses. Sharing a home for financial reasons but having ceased all marital relations for over a year still qualifies. What matters is the substance of the relationship, not the postal address. See our page on mutual divorce while living together.

"They have not been able to live together"

For Legal Professionals

The Supreme Court in Sureshta Devi described this as indicating "the concept of broken down marriage." Courts treat the consistent mutual statements of both parties as sufficient demonstration of this condition — they do not typically require separate evidence beyond the joint petition itself.

For Couples

This condition asks you both to confirm to the court that you have concluded, genuinely and together, that the marriage cannot be saved.

"They have mutually agreed that the marriage should be dissolved"

For Legal Professionals

Mutual consent is a sine qua non for a decree under Section 13B — established in Sureshta Devi v. Om Prakash and never overruled. The agreement must not have been obtained by force, fraud, or undue influence. Critically, the agreement must persist. Either spouse can withdraw consent at any point before the judge pronounces the decree at Second Motion — if withdrawn, the court has no authority under Section 13B to proceed.

For Couples

Both of you must genuinely want this. One spouse cannot be pressured into signing. And either of you can change your mind right up to the final hearing.

Section 3

The Three Conditions Under Section 13B(1) — A Clear Summary

Before a petition can be filed, all three of the following must be true simultaneously.

01

Separation of at Least One Year

Both spouses must have been living not as husband and wife for a continuous period of at least one year immediately before the date of filing. Physical separation at different addresses is the clearest proof but not the only way — as per Sureshta Devi v. Om Prakash.

02

Inability to Live Together

The marriage must have broken down to the point where neither party believes reconciliation is possible. Courts treat this as connected to the first condition — a couple that has ceased to live as husband and wife for over a year has implicitly demonstrated this.

03

Mutual Agreement to Dissolve

Both spouses must freely agree that the marriage should end. This must be voluntary, uncoerced, and must continue to exist right through to the Second Motion hearing when the court passes the decree.

All three conditions must be present at the time of filing. If any one of them is absent, a petition under Section 13B cannot be validly presented.
Section 4

Which Couples Can Use Section 13B — and Which Cannot

Section 13B Applies To
  • Hindus by religion
  • Buddhists by religion
  • Jains by religion
  • Sikhs by religion
  • All of the above, regardless of when the marriage was solemnised
  • Persons domiciled in India who are not Muslim, Christian, Parsi, or Jew by religion — as per Section 2 of the Act
Section 13B Does Not Apply To
  • Muslim couples — governed by Muslim personal law. Mutual divorce through Mubarat or Khula. Read more
  • Christian couples — governed by the Indian Divorce Act, 1869. Mutual consent under Section 10A. Read more
  • Special Marriage Act couples — civil and inter-faith marriages use Section 28 of the Special Marriage Act. Read more
  • Parsi couples — governed by the Parsi Marriage and Divorce Act, 1936. Mutual consent under Section 32B. Read more
Section 5

The Step-by-Step Process Created by Section 13B

Section 13B establishes a mandatory two-stage judicial process. Both stages require the physical presence of both spouses before the court.

PRE
Preparation Before Filing

One year of separation must have elapsed. Both spouses must have agreed on terms — alimony, streedhan, custody, property. All documents assembled. Correct Family Court identified.

The settlement MoU is drafted and agreed by both parties before the petition is filed.

Documents required →
01
First Motion — Section 13B(1)

Both spouses appear before the Family Court. Advocate presents the joint petition. Individual statements recorded from each spouse confirming identity, marriage, separation period, and free consent.

Judge passes the First Motion order — the reference date for the cooling-off period begins.

First Motion in detail →
Read our detailed page on the First Motion hearing
02
Cooling-Off Period

Minimum 6 months after First Motion. Neither spouse needs to appear during this period. Purpose: legislative buffer against impulsive decisions.

Outer limit: 18 months from First Motion. Petition lapses if Second Motion not moved within this window.

May be waived — see Section 7 of this page for the Amardeep Singh conditions.

Waivable under Amardeep Singh v. Harveen Kaur (2017)
03
Second Motion and Decree

Both spouses return to court. Each confirms continued voluntary consent, no reconciliation, and settlement terms still stand.

Court conducts inquiry under Section 13B(2) — satisfied on solemnisation and truth of averments — then passes the divorce decree. Marriage dissolved from this date.

Second Motion in detail →
Marriage dissolved from the date the judge pronounces this order
Section 6

What the Settlement MoU Must Address Before Filing

Courts across India expect the Memorandum of Understanding to address four specific areas clearly and specifically. A vague or incomplete MoU is one of the most common reasons courts raise objections at the First Motion or the Second Motion.

Alimony and Maintenance

Required — specific amount

Must specify either the exact lump-sum amount, or the monthly amount and duration, or an express mutual waiver of maintenance claims. Vague language — "a reasonable amount to be decided later" — is not acceptable.

Tax note: A lump-sum permanent alimony is generally a non-taxable capital receipt. Periodic monthly maintenance is taxable revenue income in the recipient's hands. Consult a chartered accountant for individual implications. Read our page on alimony in mutual divorce.

Child Custody and Visitation

Where minor children exist

Must state which parent has primary residence, the visiting parent's schedule with specificity — weekends, school holidays, summer breaks, festival periods. Courts will not approve "reasonable visitation" language. The schedule must be specific enough to be enforceable.

Streedhan and Personal Property

Wife's property — must be addressed

Streedhan — jewellery, gifts, and personal property given to the wife — legally belongs to the wife. The MoU should specify what has been returned, what remains to be returned, in what form, and by what date. Leaving streedhan to a post-decree conversation is a common source of disputes. Read our page on streedhan return after divorce.

Jointly Held Property

All shared assets

Jointly owned immoveable property, bank accounts, investments, and business interests all need specific terms: who retains what, what is sold and how proceeds are divided, and the timeline for transfers. Vague property clauses are a source of post-decree litigation.

Pending Litigation

If applicable

Where criminal or civil cases arising from the marriage are pending — Section 498A IPC complaints, Section 125 CrPC maintenance applications, Domestic Violence Act proceedings — the MoU should address what will happen to each. Withdrawal of such proceedings is not automatic upon the divorce decree. The MoU should specify what each party commits to do, in what sequence, and by what date.

Section 7

The Six-Month Cooling-Off Period — Its Purpose, Its Limits, and When Courts Can Waive It

The cooling-off period has been one of the most litigated aspects of Section 13B since the provision was enacted. Two landmark Supreme Court judgments have definitively settled the law on when and how it can be waived.

Amardeep Singh v. Harveen Kaur — The Waiver Framework
(2017) 8 SCC 746  |  Decided 12 September 2017
Court: Supreme Court of India Bench: Justice Adarsh Kumar Goel, Justice Uday Umesh Lalit

The six-month period under Section 13B(2) is directory, not mandatory. Family Courts and all other courts in which the petition is pending have the power to waive it in appropriate cases — without needing to invoke Article 142 of the Constitution. All four of the following conditions must be met:

Condition i — 18-Month Threshold

The combined statutory period — one year of separation under Section 13B(1) plus six months under Section 13B(2) — must already have elapsed before the First Motion hearing itself. In practice: the couple must have not been living as husband and wife for more than eighteen months before First Motion.

Condition ii — Reconciliation Failed

All efforts at mediation and conciliation must have been made and must have failed, with no likelihood of success through further effort.

Condition iii — All Differences Settled

The parties must have genuinely settled all their differences, including alimony, child custody, and any other pending issues.

Condition iv — No Purpose Served

The waiting period must serve no purpose other than to prolong the parties' suffering.

Significance: Transformed practical access to mutual divorce in India. Before this judgment, the waiver route required approaching the Supreme Court under Article 142. After Amardeep Singh, any Family Court can grant the waiver where the four conditions are satisfied. The waiver remains discretionary — conditions are necessary but not sufficient.
Shilpa Sailesh v. Varun Sreenivasan — The Constitution Bench
2023 SCC OnLine SC 544  |  Decided 1 May 2023
Court: Constitution Bench — Supreme Court of India Bench: Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, J.K. Maheshwari

A five-judge Constitution Bench reaffirmed the Amardeep Singh waiver framework for Family Courts. Additionally held that the Supreme Court, under Article 142(1), can dissolve a marriage on the ground of irretrievable breakdown — not yet a codified ground under the Hindu Marriage Act — even if one spouse opposes the divorce, where the marriage is conclusively beyond repair. Important: This power is exclusive to the Supreme Court — Family Courts and High Courts do not have this power. Parties cannot approach the Supreme Court directly via writ petition for dissolution.

Significance: Definitively settles the scope of Article 142 powers in matrimonial cases. Confirms Amardeep Singh as the correct test for cooling-off waivers before Family Courts and High Courts.
Read the complete analysis in our cooling-off period and waiver guide.
Section 8

Can Consent Be Withdrawn After Filing? — The Legal Position

Yes. Either spouse can withdraw their consent at any point before the court pronounces the divorce decree at the Second Motion. This right is settled law — established in Sureshta Devi v. Om Prakash (AIR 1992 SC 1904), reaffirmed in Smruti Pahariya v. Sanjay Pahariya [(2009) 10 SCC 415], and never overruled.

The principle is simple: mutual consent is a sine qua non for a decree under Section 13B. If consent is no longer mutual, the court has no authority under Section 13B to proceed.

What withdrawal means at different stages:

Before First Motion: No petition is presented.

After First Motion, before Second Motion: The petition fails. Options are: wait to see if the withdrawing spouse reconsiders; file a contested petition under Section 13 on applicable grounds; or explore mediation.

On the day of Second Motion before the decree: The court cannot pass the decree even at this final stage. The petition collapses.

Silence is not withdrawal. Mere non-appearance on a scheduled date without express withdrawal is not automatically a retraction — but prolonged non-appearance without explanation can lead to the petition being struck off for non-prosecution.

This is precisely why we verify mutual consent from both spouses independently before documentation begins — and why the settlement terms should be agreed and committed to before the First Motion is filed. Read our page on what to do when your spouse is not agreeing to divorce.
Section 9

Where the Petition Is Filed — Section 13B, Section 19, and the Family Courts Act

Section 13B directs the petition to "the district court." Section 19 of the Hindu Marriage Act specifies which geographically specific court has jurisdiction. Under Section 19, the petition must be presented to the district court within whose jurisdiction:

(i) the marriage was solemnised, or (ii) the respondent resides, or (iii) the parties last resided together, or (iiia) where the wife is petitioner, where she currently resides, or (iv) where the respondent resides outside India or is missing, where the petitioner resides.

For mutual divorce petitions, the three most commonly used bases are: place of marriage, last matrimonial residence, and the wife's current place of residence.

Where a Family Court has been established under the Family Courts Act, 1984 within the relevant jurisdiction, it is the correct and exclusive forum. Filing before a court that lacks territorial jurisdiction results in the petition being returned without being numbered. Confirming the correct court before filing is a basic first step.

Section 10

Seven Common Misunderstandings About Section 13B

Not 1

Section 13B does not require either spouse to prove fault

This is the defining feature of the provision. No allegation, no proof of wrongdoing, no history of the marriage. Only the three conditions.

Not 2

Section 13B does not complete the divorce in a single court visit

Two separate hearings are required by the statute. The minimum gap is six months in a standard case. There is no mechanism under Section 13B for a one-hearing divorce.

Not 3

Section 13B does not mean the process is entirely online

Preparation can be handled online. The hearings cannot. Both spouses must appear before the Family Court judge at both First and Second Motion hearings. Their statements must be recorded by the court.

Not 4

Section 13B does not automatically dissolve the marriage after six months

The lapse of six months after First Motion opens the window for Second Motion — it does not dissolve the marriage. Both parties must move the Second Motion and the court must pronounce the decree.

Not 5

Section 13B does not bind either party irrevocably after filing

Consent can be withdrawn at any point before the decree. The petition is not a point of no return for either spouse.

Not 6

Section 13B does not decide alimony, child custody, or property

The section is procedural. Those consequences are governed by the settlement agreement between the parties, incorporated into the court's decree, and supported by other substantive provisions of Indian law.

Not 7

Section 13B does not apply to Muslim, Christian, or Special Marriage Act couples

Each community has its own statutory framework. Section 13B exclusively governs Hindu, Buddhist, Jain, and Sikh marriages solemnised under the Hindu Marriage Act.

Section 11

Mutual Consent Divorce vs. Contested Divorce — What the Difference Means Practically

PointSection 13B — Mutual ConsentSection 13 — Contested Divorce
Who initiatesBoth spouses jointlyOne spouse against the other
Fault requiredNo — only the three conditionsYes — specific ground must be proved
Other spouse's consentRequired throughoutNot required
Minimum timeline6 months (with waiver); 8–12 weeks typicalTypically 2 to 5+ years
Court hearingsTwo mandatory appearancesMultiple hearings over extended period
Either party can stop itYes — consent withdrawal by either spouseOnly the petitioner can withdraw
Emotional costLower — no adversarial proceedingHigher — allegations and cross-examination
If one spouse does not agree, Section 13B is unavailable. Section 13 then requires proof of a specific matrimonial wrong. Read our page on what to do when your spouse is not agreeing to divorce.
Section 12

Key Supreme Court Judgments on Section 13B — Quick Reference

CaseCitationKey HoldingSignificance
Sureshta Devi v. Om Prakash AIR 1992 SC 1904 Mutual consent is sine qua non. Either party may withdraw consent before final decree. "Living separately" means not living as husband and wife — not requiring physical separation. Foundational. Still binding and unreversed.
Smruti Pahariya v. Sanjay Pahariya (2009) 10 SCC 415 Continued mutual consent required right up to pronouncement of decree. Withdrawal even after Second Motion arguments concluded prevents the decree. Extends Sureshta Devi to the latest possible point.
Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234 Court is bound to pass a decree if both parties move the Second Motion, averments are true, and petition has not been withdrawn. Defines the court's obligation when all conditions are met at Second Motion.
Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 Six-month cooling-off period is directory, not mandatory. Family Courts can waive it where four specified conditions are met. Waiver application one week after First Motion. Transformed practical access to mutual divorce. Every Family Court can now grant the waiver.
Shilpa Sailesh v. Varun Sreenivasan 2023 SCC OnLine SC 544 Constitution Bench reaffirms Amardeep Singh. Supreme Court under Article 142 can dissolve marriage on irretrievable breakdown — exclusive to Supreme Court. No direct writ petition to Supreme Court for dissolution. Definitively settles scope of Article 142 in matrimonial cases.
Section 13

Frequently Asked Questions on Section 13B

Q1
We have been married for eight months and separated for the past three months. Can we file for mutual divorce now?

No. Section 13B(1) requires living separately as not husband and wife for a period of one year or more immediately before the date of filing. At three months of separation, this condition is not met. There is no provision under Section 13B to file early — the one-year separation is a strict pre-condition.

Q2
Does "living separately" under Section 13B require different addresses on official documents?

No. The Supreme Court in Sureshta Devi v. Om Prakash held that "living separately" refers to cessation of marital relations, not physical location. Couples under the same roof who have genuinely ceased to cohabit as husband and wife can satisfy this condition — both spouses would need to state this consistently in their affidavits and before the court. See our page on mutual divorce while living together.

Q3
What does the MoU need to cover for the court to be satisfied at the Second Motion?

Four areas with specificity: alimony (fixed lump-sum, defined monthly amount and duration, or express mutual waiver); child custody and visitation with a specific schedule, not vague "reasonable access" language; streedhan return itemised with a date; and jointly held property with clear terms and timeline. Pending litigation — 498A complaints, maintenance applications — should also be addressed with specific commitments on what each party will do and when.

Q4
Is the alimony received in a mutual divorce taxable?

It depends on the form. A lump-sum payment as permanent alimony is generally treated as a non-taxable capital receipt under Indian income tax law. Periodic monthly maintenance is taxable as revenue income in the year of receipt. The distinction matters when structuring the alimony clause. Individual tax implications should be confirmed with a chartered accountant.

Q5
My spouse agreed to the divorce six months ago and we filed the First Motion. She is now saying she will not come for the Second Motion. What are my options?

If your spouse withdraws consent, the Section 13B petition cannot result in a divorce — settled since Sureshta Devi v. Om Prakash. Options: wait to see if the position changes; attempt formal mediation; or file a contested divorce petition under Section 13 on applicable grounds — cruelty, desertion, or others depending on your facts. The First Motion order and filed petition remain part of the court record. Read our page on what to do when your spouse is not agreeing to divorce.

Q6
We have been separated for over two years and have agreed on everything. Can a Family Court waive the six-month cooling-off period?

Yes, under Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, where all four conditions are met. With over two years of separation, you clearly satisfy the 18-month threshold. Whether the remaining three conditions are met will be assessed from your affidavits and waiver application — which can be filed one week after First Motion. Granting remains in the court's discretion. Read the cooling-off period and waiver guide.

Q7
Section 13B says the decree shall be passed if the court is "satisfied." What exactly does the court check?

Three things under sub-section (2): that a marriage has been solemnised; that the averments in the petition are true; and that consent was not obtained by force, fraud, or undue influence. The court does not investigate reasons for the breakdown, assign fault, or evaluate whether the marriage could have been saved. In a properly prepared genuine mutual divorce case, this inquiry is typically concluded at the Second Motion hearing.

Q8
We are a Jain couple. Does Section 13B apply to us exactly as it does to Hindu couples?

Yes, without any difference. Section 2 of the Hindu Marriage Act expressly includes Jains. Section 13B is available to Jain couples on the same conditions, through the same procedure, before the same courts, and with the same legal effect as for Hindu couples. There is no separate provision for Jains under Indian matrimonial law.

Q9
What is the effect of the divorce decree — from what date is the marriage dissolved?

From the date the judge pronounces the order at the Second Motion hearing. Section 13B(2) states the decree declares the marriage dissolved "with effect from the date of the decree." Both spouses are legally free to remarry after this date once the appeal period has expired or no appeal is filed, as per Section 15 of the Hindu Marriage Act.

Q10
Can we approach the Supreme Court directly to get a faster divorce under Article 142 without going through the Family Court?

No. The Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023) explicitly clarified that parties cannot approach the Supreme Court directly via writ petition for dissolution. The proper route is Section 13B before the Family Court, with the cooling-off waiver available under the Amardeep Singh conditions. The Supreme Court's Article 142 power operates only in cases that reach it through the ordinary judicial process.

For Couples Reading This

If You Are Ready to Begin — What Section 13B Means in Practice

Section 13B was introduced in 1976 with a specific philosophy: that a marriage which has irretrievably broken down should not be sustained by legal technicality when both spouses have genuinely agreed to end it. The provision is deliberately structured to give you time to be sure — the one-year separation and the six-month cooling-off period both serve this purpose. But it is equally structured to avoid making a decided couple wait indefinitely.

If you and your spouse are agreed, have been living separately as not husband and wife for at least a year, and have worked out the key terms between you, Section 13B provides a clean, non-adversarial path. Two court appearances. A single advocate for both spouses. A decree that takes effect on the day it is passed.

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Related Statutory Provisions

People Also Referred To

SectionActApplicable ToRead More
Section 10A Indian Divorce Act, 1869 Christian couples — mutual consent divorce View Page →
Section 28 Special Marriage Act, 1954 Civil / interfaith marriages — mutual consent divorce View Page →
Section 32B Parsi Marriage and Divorce Act, 1936 Parsi couples — mutual consent divorce View Page →

This page explains Section 13B of the Hindu Marriage Act, 1955 as it currently stands in the statute and as interpreted by the Supreme Court of India through the judgments cited. The content is for informational and educational purposes and does not constitute legal advice specific to any individual's circumstances. Every mutual divorce case involves facts specific to the couple and the court, and individuals should consult a qualified family law advocate for advice on their particular situation. Judgments are cited from publicly available sources and should be verified against authoritative law reports before use in legal proceedings.