Who can apply
Under Section 13B of the Hindu Marriage Act, 1955, spouses may jointly seek divorce if they have been living separately for one year or more, have not been able to live together, and have mutually agreed that the marriage should be dissolved. A similar provision exists in Section 28 of the Special Marriage Act, 1954.
Settle the terms first
Before filing, the spouses should agree on all terms in writing, usually including:
- Permanent alimony or a full and final settlement amount, and its payment schedule.
- Custody of and access to children, and contribution towards their expenses.
- Return of jewellery, stridhan and other belongings.
- Withdrawal of any pending cases between the parties.
The two motions
- First motion: a joint petition is filed before the Family Court and both spouses appear to record their statements.
- Waiting period: the law provides a period of six months after the first motion, intended as time for reflection.
- Second motion: after the waiting period and within eighteen months of filing, both spouses reaffirm their consent and the court grants the decree of divorce.
Can the waiting period be waived?
Yes. The Supreme Court has held that the six-month period is not mandatory, and a Family Court may waive it where the parties have genuinely separated for a long time, settled all issues and there is no prospect of reconciliation.
Withdrawal of consent
Consent must continue until the decree is passed. Either spouse may withdraw consent before the second motion, which is why settlement terms should be recorded carefully and payments structured sensibly.
This article is for general information only and does not constitute legal advice. The law may change and its application depends on the facts of each case. Please consult an advocate about your specific situation.
