Section 13-B of the Hindu Marriage Act, 1955 (as amended by the Amendment Act No.

68 of 1976) lays down the relevant provisions for divorce by mutual consent of husband
and wife, i.e., by mutual consent of both parties to the marriage. It is pertinent to point
out that the Hindu Marriage Act is applicable basically to a person who is Hindu,
Buddhist, Jaina or Sikh by religion.
A similar provision for divorce by mutual consent exists also in Section 28 of the Special
Marriage Act, 1954. This Act is basically an enabling statute, i.e., it applies only when
two persons voluntarily choose to marry under the provisions of this Act. Generally, this
Act is used when two persons want to perform a civil marriage or the so-called court
marriage. If an inter-religious or inter-community marriage has to be performed, then it
can be performed under the Special Marriage Act.
Since both these sections under the Hindu Marriage Act and the Special Marriage Act are
similar, I am reproducing Section 13-B of the Hindu Marriage Act that provides for
divorce by mutual consent:
13-B. Divorce by mutual consent.(1) Subject to the provisions of this Act a
petition for dissolution of marriage by a decree of divorce may be presented to the
district court by both the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage Laws (Amendment) Act,
1976, on the ground that they have been living separately for a period of one year or
more, that they have not been able to live together and that they have mutually agreed
that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of
the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the court
shall, on being satisfied, after hearing the parties and after making such inquiry as it
thinks fit, that a marriage has been solemnized and that the averments in the petition
are true, pass a decree of divorce declaring the marriage to be dissolved with effect from
the date of the decree.
It may be pertinent to mention that Section 13-B was inserted in the Hindu Marriage Act
in 1976 by way of the Amendment Act No. 68 of 1976, which means that this provision
did not exist before 1976. However, in spite of this, a petition for divorce by mutual
consent can be filed even for those marriages that were solemnized prior to 1976,
provided other conditions are satisfied.

In the light of the above legal provision, let us now understand the nuances of divorce by
mutual consent.
What is divorce by mutual consent?
As the name itself suggests, divorce by mutual consent means a decree of divorce
obtained when both parties to the marriage, i.e., both husband and wife, agree for
divorce in an amicable manner, with no party opposing it. A joint petition is filed together
by both parties.
What are the conditions for making joint petition for divorce by mutual
consent?
Following conditions must be satisfied for making a joint petition for divorce by mutual
consent:
1. That husband and wife have been living separately for a period of one year or
more.
2. That they have not been able to live together.
3. That both husband and wife have mutually agreed that the marriage should be
dissolved.
Thus, where the marriage has completely failed and both parties feel that it is not
possible to live together, and where the aforesaid 3 conditions are satisfied, both the
husband and wife can file a joint petition before the District Court for dissolution of
marriage, i.e., for divorce by mutual consent, under the provisions of the aforesaid
Section 13-B of the Hindu Marriage Act.
What is the procedure for obtaining divorce by mutual consent?
1. If all the aforesaid conditions are satisfied, both husband and wife can file a
joint petition before the District Court. This petition should be signed by both
parties to the marriage. Such joint petition is usually required to be filed in the
District Court at the place where the marriage was solemnized or where both
parties lived together last.
2. Upon filing of the joint petition, statements of husband and wife will be
recorded by the Court.

3. Thereafter, a period of at least 6 months is given by the Court. This is the legal
requirement under Section 13-B(2) of the Hindu Marriage Act. During this
period of 6 months, husband and wife can make efforts for reconciliation.
4. If they arrive at a compromise within this period and decide to resolve their
differences and decide to live together again, they can withdraw the joint
petition filed by them.
5. In fact, even one of the parties to the marriage, i.e., either husband or wife,
can also withdraw his or her consent to the joint petition for divorce by mutual
consent.
6. However, if both parties are not able to resolve their differences and make a
second motion after 6 months (but, it has to be before the period of 18
months), the Court will hear both parties.
7. After hearing both parties in this manner, and after making such inquiry as it
thinks fit, the Court, on being satisfied that a marriage has been solemnized
and that the averments made in the joint petition are true, shall pass a decree
of divorce declaring the marriage to be dissolved.
8. The marriage will stand dissolved from the date of such decree passed by the
Court.
Thus, divorce by mutual consent is advisable where it is impossible for the husband and
wife to live together any more and where they have come to the conclusion by mutual
agreement that it is better to dissolve the marriage. This process avoids the allegations
made by either party against the other, which are usually seen in most matrimonial
disputes. Divorce by mutual consent is a comparatively faster and easier method of
getting the marriage dissolved when both husband and wife mutually agree to get the
marriage dissolved. At the time of such mutual agreement, they should also amicably
settle other issues, such as custody of children, disposal of common property, the
alimony to be paid, etc.

HOW DOES YOUR CASE PROCEED ? AND HOW MUCH TIME DOES IT TAKE ONCE IT IS FILED IN
THE COURT

Petition is filed in the court with all the relevant evidences/documents. Person filing the
petition is called the petitioner and erring spouse responding is the respondent. (Remember
to annex all documents on you rely with the petition itself Videos/Audio Recordings/Photos
are documents within the meaning of evidence act, and admissible in evidence, yours spouse
emails/chats/facebook/twitter updates are also admissible to prove depravity/infidelity or
whatever !

After you file the petition in the court erring spouse is summoned, if he/she turns up and
enters appearance the matter is bi-parte, if the erring spouse prefers not to contest or come
to the court, the matter is proceeded ex parte (in absence) and divorce granted if the matter
is worthy of the same.

In case of bi-parte the court normally would before seeking a reply from your
spouse of the allegations levelled by you would refer the parties to a mediation
or conciliation, so that issues can be resolved amicably this way or the other.
Whether leading to a reconciliation (living together) or an amicable divorce.

If the above fails, the erring spouse/respondent would file a Written Statement
to your petition with the necessary documents (Normal time for filing a WS is 30
days (Max : 90 Days). Following which one can file a replication to further
elaborate and explain.

Once that is done the court would frame issues issues are questions that are
to be decided by court at the time of final hearing. For eg : in a Divorce on the
ground of adultery the issues would be Whether the respondent had sexual
intercourse with X during the subsistence of marriage with the petitioner ? The
answer to this question would decide the fate of divorce case. There may be more
than one issue in case of multiple grounds. The entire divorce proceedings are
premised at answering this question/issue.

After issues are framed the court would ask petitioner to lead evidence, his
own or/and his witnesses. This also is decided into three stages. First petitioner
would lead his witness and examine him. Thereby putting the foundation of his
case. (Called examination in chief) Thereafter the opposite party would cross
examine the petitioners witness. (Called cross examination) Cross examination
includes exposing the falsity of a witnesss deposition by putting leading
questions, and contradicting the witness. Witness may either withstand the
onslaught of questions thereby retaining the confidence and reliance of the
court, or he may stand discredited.

The Party calling the witness is further given an opportunity to fill the holes
the opposite partys advocate has busted into it and make the court believe in its
witness.

The same process is repeated for each witness on either side. Once petitioners evidence is
over, respondent leads his or her evidence. Please note petitioner/respondent/family members
are all competent witnesses.

Once evidences are over. The Court would finally listen to arguments of either side on the
case, and then proceed to decide the case.

On how the evidences are appreciated, to illustrate in a case based on cruelty the court would
normally see whether on the totality of evidences led, is the conduct of respondent such as to
make living together a practical impossibility ? Does it pose a great risk to physical or mental
well being of the petitioner.

The Courts formal order in the end is known as the decree. After this either party may
appeal in the High Court and then finally the Supreme Court.

Normally the process in the Family Court would take anywhere between 2-3 years if contested
vigorously. My experience has shown that parties normally lose patience somewhere in
between and agree to part ways amicably. Because litigation does not really pay for anybody
but the lawyers ! and that is the reason I advise my clients to go in for this only when the
mutual option is unquestionably foreclosed.