Section 13-B of the Hindu Marriage Act, 1955 (inserted by the Marriage Laws Amendment Act, 1976) provides for divorce by mutual consent — a dignified and relatively swift exit from a marriage when both parties have genuinely agreed to dissolve it. Unlike a contested divorce where one party must prove a matrimonial fault (cruelty, desertion, adultery, etc.), mutual consent divorce requires no allegations and no adversarial litigation. The court's role is primarily to verify that the consent is genuine, free, and that the requisite conditions are met. This makes it the most commonly sought matrimonial remedy in India today, including at Jodhpur Family Courts and the Rajasthan High Court.
Conditions for filing — Section 13-B(1): Both parties must jointly present a petition stating that: (i) they have been living separately for a period of one year or more; (ii) they have not been able to live together; and (iii) they have mutually agreed that the marriage should be dissolved. The "living separately" requirement has been construed by courts as not necessarily requiring physical separation in different residences — spouses living under the same roof but without any marital relationship (no cohabitation, no shared domestic life) may also qualify. In Sureshta Devi v. Om Prakash (1991), the Supreme Court clarified that "living separately" means not living as husband and wife, and that the one-year period must immediately precede the filing of the petition.
The two-motion procedure and the cooling-off period: Section 13-B operates in two stages. First, the joint petition is filed before the Family Court (or Principal Civil Court of original jurisdiction). The court records the statement of both parties. This is the "first motion." Section 13-B(2) then mandates a mandatory waiting period of not less than six months and not more than eighteen months from the date of the first motion, during which either party may withdraw consent. After the expiry of the six-month period (and within the eighteen-month window), if neither party has withdrawn consent, both parties appear before the court for the "second motion" — their statements are re-recorded, and the court passes the divorce decree. The six-month cooling-off period was designed to give the parties an opportunity for reconciliation, but it has often resulted in unnecessary delays for parties who are already certain of their decision.
Waiver of the six-month cooling-off period: The Supreme Court in Amardeep Singh v. Harbhajan Kaur (2017) — a landmark three-judge bench decision — held that the six-month waiting period under Section 13-B(2) is directory and not mandatory. It can be waived by the court if: (i) the parties have already been living separately for more than 18 months at the time of the first motion (demonstrating there is no possibility of reconciliation); (ii) all disputes — alimony, property, child custody — have been settled; and (iii) waiting the full six months would serve no purpose. Following Amardeep Singh, Family Courts in Rajasthan routinely entertain waiver applications and many mutual consent divorces are completed in a single sitting or within a few weeks. The Rajasthan High Court has also exercised its jurisdiction under Article 142 of the Constitution to dissolve marriages by mutual consent in appropriate cases (particularly where the parties have been litigating for years in parallel proceedings).
What must be agreed — the settlement terms: While only the parties' consent to dissolve the marriage is legally necessary, courts in practice insist — and lawyers strongly advise — that a comprehensive settlement agreement be reached before the first motion is filed. The settlement should cover: (1) Permanent alimony / maintenance — a one-time lump sum or periodical payments to the wife (or in rare cases, the husband), computed having regard to the wife's needs, the husband's income, and the standard of living during marriage. Once a decree of divorce by mutual consent is passed, no subsequent maintenance claim under Section 25 HMA or Section 144 BNSS is entertainable for the same marriage. (2) Return of stridhan — all jewellery, gifts, and property that came to the wife from her parental family or the matrimonial family must be returned. (3) Child custody and visitation — whether custody is to be sole (with one parent) or joint, visitation schedule for the non-custodial parent, and maintenance for the child. Courts are careful to ensure that custody arrangements genuinely serve the child's welfare and are not merely an outcome of the adult bargaining. (4) Property division — disposal of jointly held or disputed property.
Withdrawal of consent and the "one-party withdrawal" problem: Either party may withdraw consent at any time before the passing of the decree. In Sureshta Devi (supra), the Supreme Court held that unilateral withdrawal of consent by one party before the second motion makes the petition incompetent and the court cannot pass the decree over the objection of that party. This remains the settled position, and is an important practical reality: mutual consent divorce requires both parties' willingness throughout the proceedings. However, where withdrawal of consent is used as a tactic to extract better terms (rather than a genuine change of mind), courts may take a dim view and in extreme cases, the Rajasthan High Court has exercised Article 142 jurisdiction to dissolve irretrievably broken marriages even over one party's objection — though this is exceptional and involves a very high threshold.