Procedure of Divorce through Mutual Consent under Section 13B of the Hindu Marriage Act (HMA)

The Divorce by mutual consent is a process under Section 13B of the Hindu Marriage Act, 1955, which allows both spouses to mutually agree to dissolve their marriage. This method is usually quicker and less contentious than contested divorce cases. The process under Section 13B is designed to be amicable, provided both parties have agreed on all relevant matters such as child custody, alimony, and division of assets.

Stepwise Procedure: 

Step 1: Filing the First Motion (Motion 1)

The divorce process begins with the filing of the First Motion petition before the appropriate Family Court. This petition is jointly filed by both spouses. The petition must clearly state that:


1. The couple has been living separately for a period of at least one year.

2. They are unable to live together.

3. They have mutually agreed that the marriage should be dissolved.


The petition should be accompanied by affidavits from both parties attesting to the above facts.


Draft for the First Motion:



IN THE FAMILY COURT AT [Location]


MATRIMONIAL PETITION NO. ____ OF 20__


IN THE MATTER OF:


[Name of the Husband]                                             PETITIONER NO. 1

Son of [Father’s Name],

Resident of [Address],


AND


[Name of the Wife]                                                PETITIONER NO. 2

Daughter of [Father’s Name],

Resident of [Address].


PETITION UNDER SECTION 13B(1) OF THE HINDU MARRIAGE ACT, 1955


Respectfully Showeth:


1. That the Petitioners were married according to Hindu rites and ceremonies on [Date of Marriage].

2. That the Petitioners have been living separately since [Date of Separation].

3. That all efforts of reconciliation have failed, and they have mutually agreed to dissolve the marriage.

4. That both Petitioners have agreed to the terms of settlement, including [Child Custody/Alimony/Division of Property] as outlined in the attached Memorandum of Understanding (MOU).

5. It is prayed that this Hon'ble Court may be pleased to record the statements of both the Petitioners and pass a decree of divorce by mutual consent under Section 13B(1) of the Hindu Marriage Act, 1955.


[Signatures of Both Petitioners]


Step 2: Cooling Off Period


After the First Motion is filed, the court typically grants a 'cooling-off period' of six months. This period is provided for the couple to reconsider their decision to divorce. It serves as a final opportunity for reconciliation. However, recent judgments have allowed for the waiver of this period under certain circumstances where it is evident that reconciliation is not possible, and waiting would only cause undue hardship.


Step 3: Filing the Second Motion (Motion 2)


After the cooling-off period, if the couple still wishes to proceed with the divorce, they must file the 'Second Motion'. This is the final step, where both parties reiterate their desire to divorce. The court, upon being satisfied with the consent of both parties, will grant the decree of divorce.


Draft for the Second Motion:


IN THE FAMILY COURT AT [Location]


MATRIMONIAL PETITION NO. ____ OF 20__


IN THE MATTER OF:


[Name of the Husband]                                             PETITIONER NO. 1

Son of [Father’s Name],

Resident of [Address],


AND


[Name of the Wife]                                                PETITIONER NO. 2

Daughter of [Father’s Name],

Resident of [Address].


PETITION UNDER SECTION 13B(2) OF THE HINDU MARRIAGE ACT, 1955


Respectfully Showeth:


1. That the Petitioners filed a petition under Section 13B(1) of the Hindu Marriage Act, 1955 on [Date of Filing First Motion].

2. That the statutory period of six months has elapsed, and the Petitioners have not cohabited during this period.

3. That the Petitioners have mutually agreed to dissolve the marriage as there is no possibility of reconciliation.

4. It is prayed that this Hon'ble Court may be pleased to grant a decree of divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act, 1955.


[Signatures of Both Petitioners]


Memorandum of Understanding (MOU) or Settlement Deed:


Before or during the First Motion, both parties should draft a 'Memorandum of Understanding (MOU)' or a 'Settlement Deed'. These documents detail the terms of the divorce, including:


1. Division of Property: Agreement on how the assets, both movable and immovable, will be divided between the parties.

2. Alimony and Maintenance: Terms of alimony, including the amount, frequency, and duration, if any.

3. Child Custody and Support: Agreement on who will have custody of the children, the visitation rights of the non-custodial parent, and the terms of child support.

4. Other Settlements: Any other mutual agreements, such as the handling of debts, loans, etc.


These documents are crucial as they provide the court with a clear picture of how the parties have resolved their issues, making the process smoother and ensuring that both parties' rights are protected.


Conclusion:

Divorce by mutual consent under Section 13B of the Hindu Marriage Act is a structured yet flexible process that allows for an amicable separation. The involvement of both parties in agreeing to the terms of their divorce ensures that the process is less adversarial and more focused on resolution rather than conflict. The two-motion process, supported by a cooling-off period and a well-drafted MOU, helps ensure that the decision to divorce is well-considered and mutual.









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Delhi High Court, New Delhi-110003

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Location: Delhi, India

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