Not every marriage ends in conflict. When both spouses agree that the marriage cannot continue, the law provides a shorter and more private route: divorce by mutual consent.
What the law requires
Under the Hindu Marriage Act, 1955, both spouses may present a joint petition. They state that they have been living separately for a year or more, that they have not been able to live together, and that they have mutually agreed the marriage should be dissolved. Other personal laws and the Special Marriage Act contain similar provisions, each with its own conditions.
The process
- A joint petition is filed in the family court that has jurisdiction.
- Both spouses' statements are recorded. This is known as the first motion.
- The court ordinarily allows a waiting period of six months, so that the parties have time to reconsider.
- If both still consent, a second motion is heard and the court may pass the decree.
Can the waiting period be waived?
The Supreme Court has held that the six-month period is not mandatory in every case. Courts may shorten it where the parties have genuinely settled all issues and there is no real prospect of reconciliation. This depends on the facts and is never automatic.
What must be settled first
A mutual consent divorce works only if the terms are agreed in writing before filing. These usually include:
- Custody of, and access to, any children
- Maintenance, or a one-time settlement
- Division of property, jewellery and stridhan
- Withdrawal of any pending cases between the spouses
A carefully drafted settlement is what makes a smooth divorce possible.
Common mistakes
Signing vague terms, leaving property or child arrangements "to be discussed later", and withdrawing consent midway are the most frequent reasons a smooth process becomes a contested one. Take advice before you sign anything.