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 fixes the window for the second motion: not earlier than six months after the date of the presentation of the petition, and not later than eighteen months after that same date. Read the anchor carefully. Both limbs run from presentation, not from the day the statements happen to be recorded, and where those two dates differ it is the presentation date the court counts from. If the petition is not withdrawn in the meantime, the parties appear for the second motion and their statements are re-recorded. The court then satisfies itself that the marriage was solemnised and that the averments in the petition are true, and passes a decree dissolving the marriage with effect from the date of the 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 held in Amardeep Singh v. Harveen Kaur, Civil Appeal No. 11158 of 2017, decided on 12 September 2017 and reported at (2017) 8 SCC 746, that the six-month period under Section 13-B(2) is directory and not mandatory. The respondent was Harveen Kaur. Paragraph 18 sets out what the court must consider before waiving the period: (i) the six months under Section 13-B(2), in addition to the one year of separation required by Section 13-B(1), is already over before the first motion itself; (ii) all efforts at mediation and conciliation, including efforts under Order XXXII-A Rule 3 CPC, Section 23(2) of the Act and Section 9 of the Family Courts Act, have failed and there is no likelihood of success by any further effort; (iii) the parties have genuinely settled their differences, including alimony, custody of the child and any other pending issue; and (iv) the waiting period will only prolong their agony. Condition (ii) is the one most often left out of the application, and it is the one the Family Court at Jodhpur takes up first. Paragraph 19 fixes the timing: the waiver application may be filed one week after the first motion, giving reasons for the prayer. Paragraph 20 leaves the waiver to the discretion of the court dealing with the matter, which here is the Family Court itself. A waiver is argued, not assumed.
Article 142 belongs to the Supreme Court alone: One point needs stating plainly, because it is widely got wrong. Article 142(1) of the Constitution empowers the Supreme Court, in the exercise of its jurisdiction, to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. It confers no corresponding power on a High Court. The Rajasthan High Court therefore cannot dissolve a marriage on the ground of irretrievable breakdown, and it cannot dispense with a statutory requirement on that footing. Amardeep Singh records the distinction at paragraph 8, discussing Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415: the civil courts and the High Court could not exercise power contrary to the statutory provisions, but the Supreme Court under Article 142 could. What the Rajasthan High Court does exercise in matrimonial matters is its appellate jurisdiction, under Section 28 HMA from a decree of the District Court and under Section 19 of the Family Courts Act, 1984 from a Family Court, together with its writ and supervisory jurisdiction under Articles 226 and 227. Those are real remedies. They are not Article 142, and a petition drafted as though they were will not survive the first hearing.
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. It is often said that the decree closes the question of maintenance for good. The bare provisions do not say so. Section 25(1) HMA allows either spouse to apply for permanent alimony at the time of passing any decree or at any time subsequent thereto, and Section 25(2) allows the order to be varied if circumstances change. The Explanation to Section 144(1) BNSS defines "wife" to include a woman who has been divorced and has not remarried. A settlement that is recorded and actually performed is a strong answer to a later claim, but it answers the claim on its merits; it is not a bar on jurisdiction. That is the practical reason to draft the term as a full and final settlement, record its performance in the second-motion statement, and keep proof of payment on the file. (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. Where withdrawal is used as a tactic to extract better terms rather than as a genuine change of mind, the disappointed spouse is sometimes told that the High Court will dissolve the marriage anyway. It will not, for the reason given above. Only the Supreme Court has dissolved irretrievably broken marriages over one party's objection, and it does so sparingly in the exercise of Article 142. The realistic course at Jodhpur is to fall back on a contested petition under Section 13(1) on whatever ground the facts actually support, and to treat the failed mutual-consent proceeding as evidence of separation rather than as a lost opportunity.
Finality, and the appeal that does not lie: Clients are routinely told that a mutual-consent decree can be appealed within ninety days under Section 28 HMA. For a decree of a Family Court that is wrong on both halves, and being wrong about it costs a party the one remedy that is real. Section 19(2) of the Family Courts Act, 1984 says in terms that no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties, and a Section 13-B decree is by definition a decree passed with consent. Section 19(1) says so notwithstanding anything contained in the Code of Civil Procedure, 1908 or in any other law; Section 19(5) closes revision as well, in the words except as aforesaid, no appeal or revision shall lie to any court; and Section 20 gives the Act effect notwithstanding anything inconsistent in any other law. The ninety days in Section 28(4) HMA therefore never starts running. Where an appeal from a Family Court does lie, against a contested decree, Section 19(3) gives thirty days, not ninety. Which forum passed the decree is the whole question, because Section 8 bites only where a Family Court has been established for the area: Jodhpur has one, so Section 19 governs here, while in a district of this Bench's territory that has none the joint petition goes to the District Judge as the principal civil court of original jurisdiction and Section 28 HMA, with its ninety days, is the appeal provision. I have had both situations in the same month. What a party keeps in either case is the ground, not the appeal: Section 23(1)(bb) HMA puts a positive duty on the court to satisfy itself that the consent was not obtained by force, fraud or undue influence, so an objection of that kind belongs at the second motion, when the statements are being recorded, and not in an appeal afterwards. After the decree what is left is Articles 226 and 227, which is a narrower door than an appeal and is not a second chance to renegotiate the settlement. If you are sorting out which of these courts your own matter sits in, the chamber's page on which matter is heard in which court at Jodhpur sets out the forums and what each of them takes.