Can the six-month waiting period be waived?

Yes. The Supreme Court has held that the period under Section 13B(2) of the Hindu Marriage Act, 1955 is directory and can be waived by the court in appropriate cases — typically where the parties have been separated for a substantial period, all disputes including alimony and custody have been settled, reconciliation is not possible, and further waiting would serve no purpose. The waiver is discretionary and must be sought from the court.

Can one spouse withdraw consent before the second motion?

Yes. Mutual consent must subsist at the time the second motion is heard. If either party withdraws consent before then, a decree cannot be passed on that petition, and the other party would have to proceed on contested grounds. This is why settlements are documented carefully and, where possible, substantially performed before the second motion.

Does mutual consent divorce apply to all communities in India?

The applicable provision depends on the law governing the marriage. Section 13B of the Hindu Marriage Act, 1955 applies to marriages under that Act; Section 28 of the Special Marriage Act, 1954 applies to marriages solemnised or registered under it; and other personal laws have their own provisions. The procedure is broadly similar but the governing statute, timelines and conditions differ.

Family

How does divorce by mutual consent work in India?

Divorce by mutual consent allows spouses to end a marriage without contesting grounds. Under Section 13B of the Hindu Marriage Act, 1955 the parties file a joint petition stating they have lived separately for one year or more and have agreed to dissolve the marriage. A second motion is ordinarily moved after six months and within eighteen months. The Supreme Court has held the waiting period to be directory and waivable in appropriate cases.

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Key takeaways

Two motions are required: the joint petition and, after the interval, the second motion.
The statutory interval is six months, extendable to eighteen, and may be waived by the court.
The settlement should resolve maintenance, custody and property comprehensively.
Consent must subsist at the second motion; either party may withdraw before it.

Relevant law and authority

Hindu Marriage Act, 1955, Section 13B: Divorce by mutual consent — the two-motion process.
Special Marriage Act, 1954, Section 28: Mutual consent divorce for marriages solemnised or registered under that Act.
Hindu Marriage Act, 1955, Section 24: Maintenance pendente lite and expenses of proceedings.
Guardians and Wards Act, 1890: Guardianship and custody of minor children.

The two-motion process

The parties file a joint petition before the family court having jurisdiction, stating that they have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed to dissolve the marriage. The court records statements at the first motion.

After the statutory interval, the parties move the second motion and reaffirm their consent. The court, if satisfied that the averments are true and consent subsists, passes a decree of divorce. Consent must exist at both stages — either party can withdraw before the second motion is recorded.

Waiver of the waiting period

The six-month interval under Section 13B(2) has been held by the Supreme Court to be directory rather than mandatory, and a court may waive it where the parties have genuinely been separated for a long period, all issues including maintenance, custody and property have been settled, reconciliation is not possible, and waiting would only prolong their distress.

Waiver is discretionary and fact-specific. Where the settlement is complete and documented and the separation is long-standing, an application for waiver is commonly made along with the first motion.

What the settlement should cover

A complete settlement deals with permanent alimony or a lump-sum payment and its timing, custody and guardianship of children with defined visitation, education and medical arrangements for children, division of movable and immovable property, return of jewellery and personal effects, and withdrawal of any pending proceedings.

Terms should be recorded precisely and filed with the petition. Vague settlement terms are the most common reason mutual-consent matters become contested again after the first motion.

Practical implications

Settle every issue before the first motion, not between motions.
Record payment amounts, dates and mode of transfer explicitly.
Deal with custody and visitation in specific terms, including holidays and travel.
List the proceedings each party will withdraw and by when.
Keep documentary proof of the separation period.

Common questions

Can the six-month waiting period be waived?: Yes. The Supreme Court has held that the period under Section 13B(2) of the Hindu Marriage Act, 1955 is directory and can be waived by the court in appropriate cases — typically where the parties have been separated for a substantial period, all disputes including alimony and custody have been settled, reconciliation is not possible, and further waiting would serve no purpose. The waiver is discretionary and must be sought from the court.
Can one spouse withdraw consent before the second motion?: Yes. Mutual consent must subsist at the time the second motion is heard. If either party withdraws consent before then, a decree cannot be passed on that petition, and the other party would have to proceed on contested grounds. This is why settlements are documented carefully and, where possible, substantially performed before the second motion.
Does mutual consent divorce apply to all communities in India?: The applicable provision depends on the law governing the marriage. Section 13B of the Hindu Marriage Act, 1955 applies to marriages under that Act; Section 28 of the Special Marriage Act, 1954 applies to marriages solemnised or registered under it; and other personal laws have their own provisions. The procedure is broadly similar but the governing statute, timelines and conditions differ.

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Sources & editorial information

Jurisdiction: India
Last reviewed: 17 September 2026
Legal status: Current

Primary sources

This page is general legal information about Indian law, prepared against identified legal sources. It is not legal advice and does not create a lawyer–client relationship. Apply it to your own facts only after a consultation with a qualified legal professional.

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