Divorce by mutual consent: the one-year separation, the six-month wait and when it is dispensed with

A Hindu marriage can be dissolved on a joint petition under section 13B of the Hindu Marriage Act, 1955 when the spouses have lived separately for one year or more, cannot live together and have agreed that the marriage should end, and the decree follows a second motion made not earlier than six months and not later than eighteen months after the petition is presented. The six months is not a fixed bar: in Amardeep Singh v. Harveen Kaur ((2017) 8 SCC 746) the Supreme Court of India held that a court may waive it on stated conditions, and a Constitution Bench held on 1 May 2023 in Shilpa Sailesh v. Varun Sreenivasan that the Supreme Court may, under Article 142 of the Constitution of India, grant a decree by consent without a second motion. Section 28 of the Special Marriage Act, 1954 follows the same scheme.

What does section 13B require?

Section 13B(1) lets both parties together present a petition to the district court on three grounds taken together: 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.

Section 13B(2) sets the clock. The second motion is made by both parties "not earlier than six months after the date of the presentation of the petition" and "not later than eighteen months after the said date", and only "if the petition is not withdrawn in the meantime". The court must be satisfied, after hearing the parties and making such inquiry as it thinks fit, that the marriage was solemnised and that the averments in the petition are true. It then passes a decree dissolving the marriage from the date of the decree.

Two other provisions sit behind that. Section 23(1)(bb) requires the court to be satisfied that the consent was not obtained by force, fraud or undue influence, and section 23(2) makes it the court's duty, where possible, to attempt reconciliation first. Section 28 of the Special Marriage Act, 1954 is drafted the same way for a marriage solemnised under that Act.

Which court hears it in Bengaluru?

Section 19 of the Hindu Marriage Act places a petition before the district court within whose limits the marriage was solemnised, the respondent resides, the parties last resided together, where the wife is the petitioner, she resides, or, where the respondent lives outside the territories to which the Act extends, the petitioner resides. Where a Family Court has been established, section 7(1) of the Family Courts Act, 1984 gives it the jurisdiction of the district court over a proceeding between spouses for dissolution of marriage and deems it a district court for that purpose. Section 3(1)(a) requires a Family Court for every city or town whose population exceeds one million, so a section 13B petition within the local limits of the Family Court at Bengaluru goes to that court.

That forum adds three things. Section 9 requires an endeavour at settlement in the first instance. Section 10(3) lets the court lay down its own procedure toward a settlement or the truth of the facts. And section 13 gives no party a right to be represented by a legal practitioner, though the court may seek an amicus curiae where it considers that necessary in the interest of justice.

When can the six months be waived?

The text of section 13B(2) says nothing about waiver. The Constitution Bench describes the six months as time for the parties to reflect, not a means of prolonging a marriage that has already ended, and Amardeep Singh held that a court may waive it where:

• the six months, added to the one year in section 13B(1), has already run before the first motion, so the spouses have been apart for at least eighteen months;
• every effort at mediation or conciliation, including those the statutes require of the court, has failed and more is unlikely to succeed;
• the parties have genuinely settled their differences, including alimony, custody of any child and any other pending issues; and
• the waiting period will only prolong their agony.

The application can be filed one week after the first motion, with reasons, and even then the waiver rests in the court's discretion. The Constitution Bench in Shilpa Sailesh records the questions that judgment lists for that discretion: how long the parties have been married, how long the litigation has been pending, how long they have lived apart, whether other proceedings are pending, whether they attended mediation, and whether they have reached a genuine settlement. It also records, citing Amit Kumar v. Suman Beniwal (2021), that the two sub-sections together envisage a gap of one and a half years from separation.

Can either spouse withdraw consent?

Until the decree, yes. The Constitution Bench recounts that Sureshta Devi v. Om Prakash ((1991) 2 SCC 25) held that a party may withdraw consent at any stage before the decree, and that a three-judge bench approved this in Smruti Pahariya v. Sanjay Pahariya ((2009) 13 SCC 338). In Hitesh Bhatnagar v. Deepa Bhatnagar ((2011) 5 SCC 234) one spouse withdrew before the second motion, so no decree could issue, because the second motion the law requires had not been made by both. That decision also holds that the eighteen months, fixed to ensure quick disposal, has no bearing on withdrawal, because section 13B(2) sets no time for withdrawing consent.

What can the Supreme Court do under Article 142?

Article 142(1) lets the Supreme Court pass the order needed to do complete justice in a cause or matter before it. In Shilpa Sailesh the Constitution Bench held, first, that on a settlement it may dissolve a marriage by mutual consent without being bound by the second motion, exercising the power with care and caution and keeping in view the Amardeep Singh factors and those in Amit Kumar, which include whether the settlement on alimony, maintenance and custody was reached freely and without coercion. It may also quash other proceedings, including criminal ones.

Second, it held that it may dissolve a marriage on the ground of irretrievable breakdown even where the other spouse opposes, if the facts show that the marriage has completely failed, while balancing the position of the spouse who opposes. A party cannot file a writ petition under Article 32 to ask the Court directly for a dissolution; the power arises in a cause or matter already before it, such as a transfer petition.

What does a settlement cover?

The section 13B decree is the status order. Money and children are dealt with under other provisions. Section 25 of the Hindu Marriage Act lets the court, at the decree or later, order a gross sum or a periodical sum for the applicant's maintenance, with regard to both parties' income and property, their conduct and the other circumstances, and secure it by a charge on immovable property. Section 26 lets the court make provision in the decree for the custody, maintenance and education of minor children, consistently with their wishes where possible.

Cruelty by a husband or his relatives is an offence under section 85 of the Bharatiya Nyaya Sanhita, 2023 (section 498A of the earlier Indian Penal Code). It does not appear in the table of offences that section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023 allows to be compounded, so it cannot be compounded. The route the Constitution Bench describes is quashing: in B.S. Joshi v. State of Haryana ((2003) 4 SCC 675) the Supreme Court held that the High Court may quash such a prosecution on settlement when the ends of justice require, using the inherent power now in section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (section 482 of the earlier Code of Criminal Procedure). Outside the Supreme Court each proceeding, including one under the Protection of Women from Domestic Violence Act, 2005, is closed by an application in its own forum, which the Constitution Bench notes adds listing, paperwork and delay.

What does the timeline look like?

An illustration. The couple, dates and settlement are hypothetical. They married in Bengaluru on 14 February 2018, have one child and have lived apart since 1 September 2023.

Joint petition (first motion) presented, Bengaluru Family Court   10 July 2025
  One year of separation under section 13B(1) reached on         1 September 2024
  Eighteen months of separation reached on                       1 March 2025

Route without waiver
  Earliest second motion (six months after petition)             10 January 2026
  Latest second motion (eighteen months after petition)          10 January 2027

Route with waiver
  Earliest waiver application (one week after first motion)      17 July 2025
  Decree if mediation failed and the settlement is genuine       court's discretion

Settlement terms recorded for the court
  Permanent alimony                                              INR 40 lakh in one payment
  Custody of the child                                           mother, with agreed access
  Criminal complaint under section 85                            quashing sought in the High Court

Both clocks run from the date the petition is presented. If either spouse withdraws consent before the decree, the petition cannot end in one.

What about a spouse abroad?

Neither section 13B nor section 28 of the Special Marriage Act says where the spouses must be when they are heard. Section 13B(2) requires the court to hear the parties, and section 20(2) of the Hindu Marriage Act requires the petition's statements to be verified in the manner required for plaints. Section 10(3) of the Family Courts Act leaves a Family Court free to settle its own procedure. A hearing by video therefore rests on the court's own directions, not on a rule in either marriage Act.

For a criminal case pending alongside, section 530 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides that trials, inquiries and proceedings under it, including examination of the complainant and witnesses, may be held in electronic mode by audio-video electronic means. That covers the criminal side, not the civil petition.

What remains unsettled?

Whether the Amardeep Singh conditions must all be met. The judgment says that if they are satisfied the waiver is in the court's discretion, and does not say whether a court may waive on facts that fall short of one of them.

What follows once money has been paid or a criminal case closed on a settlement and a spouse then withdraws consent before the decree. The decisions the Constitution Bench describes treat withdrawal as going to the consent the decree needs, and do not say what follows for money already paid or a criminal case already closed.