Mutual consent divorce in Gurgaon

When both spouses agree that the marriage is over, the law provides a comparatively short route out of it. It is still a court proceeding with statutory conditions, two separate appearances and a settlement that binds both parties for years afterwards.

• s. 13B Hindu Marriage Act, 1955
• s. 28 Special Marriage Act, 1954
• s. 14 HMA
• Amardeep Singh v. Harveen Kaur (2017)
• Shilpa Sailesh v. Varun Sreenivasan (2023)

What section 13B provides

Section 13B of the Hindu Marriage Act, 1955 allows a husband and wife to present a joint petition asking the court to dissolve their marriage. The equivalent provision for marriages under the Special Marriage Act, 1954 is section 28, and the procedure is materially the same. Unlike a contested petition, nobody has to allege cruelty, desertion or adultery, and nobody has to prove anything against the other. The court's role is to satisfy itself that the consent is genuine, that the statutory conditions are met, and that the terms the parties have agreed are not unconscionable.

That last point is often underestimated. A Family Court is not a registry that stamps agreements. It will ask both parties directly, on the record and separately from their advocates, whether they understand what they are giving up.

The three conditions

A petition under section 13B(1) must establish three things:

1. Separate living for one year or more. The statute says the parties have been living separately for a period of one year or more. Courts have read "living separately" as living without a marital relationship rather than necessarily at different addresses — couples who continue to share a house for financial or family reasons can and do satisfy this, but the pleading has to be honest about it.
2. Inability to live together. A statement that the parties have not been able to live together, which the court will test in the recorded statement rather than take at face value.
3. Mutual agreement to dissolve. Free consent, without coercion, undue influence or fraud — and that consent must subsist right up to the decree, not merely on the day the petition is filed.

First motion to decree

1. Drafting and settlement. The joint petition and the settlement terms are prepared together. In practice the settlement is the real negotiation and the petition follows from it.
2. Filing. The petition is filed before the Family Court at Gurgaon, supported by affidavits of both parties and the annexures listed below.
3. First motion. Both parties appear. The court verifies identity, records the statement of each party separately, and passes an order on the first motion. This is the point from which the statutory period runs.
4. Statutory interval. Section 13B(2) requires that the second motion be moved not earlier than six months and not later than eighteen months after the first. The six months may be waived in appropriate cases; the eighteen-month outer limit is real, and a petition left unmoved beyond it is ordinarily treated as abandoned.
5. Second motion. Both parties appear again. The court confirms that consent subsists, that the agreed terms have been performed so far as they were due, and hears the parties.
6. Decree. The court passes a decree of divorce. A certified copy is issued on application and is the document you will actually need for a passport, a visa, a remarriage or a name change.

Waiving the six-month gap

In Amardeep Singh v. Harveen Kaur, decided in 2017, the Supreme Court held that the six-month period in section 13B(2) is directory rather than mandatory, and that a Family Court may waive it. The court set out the considerations: that the statutory one-year separation period was already over before the first motion, that mediation and conciliation efforts have failed, that the parties have genuinely settled all differences including alimony, custody and any other pending litigation, and that the waiting period would only prolong their agony. A waiver application is normally moved along with the first motion.

Separately, in Shilpa Sailesh v. Varun Sreenivasan the Supreme Court confirmed that it may itself dissolve a marriage on the ground of irretrievable breakdown in exercise of its power under Article 142 of the Constitution, and may do so without referring the parties back to the Family Court. That route is available in the Supreme Court, not in the Family Court, and is generally relevant where a transfer petition or an appeal is already pending there.

What the settlement must record

A settlement that is silent on a head of claim is an invitation to litigate it later. The terms recorded before the court should deal with, at minimum:

• the total alimony or permanent maintenance figure, how it is to be paid, and by when — and whether any part is to be paid at the first motion or all of it at the second;
• an express waiver of all future claims to maintenance under every provision, named individually, rather than a general phrase;
• custody of any child, the visitation schedule in dates and hours rather than in principle, and who bears education and medical costs;
• return of streedhan, jewellery and articles, with a schedule and an acknowledgement of what has already been returned;
• title to any jointly held immovable property, and the mechanics of transfer or sale;
• withdrawal of every other pending proceeding, listed by case number and court, and the sequence in which withdrawals happen;
• what happens if a party defaults on a payment that falls due after the decree.

The drafting of these terms is dealt with separately on the page on matrimonial agreements and drafting.

Realistic timeline

Where these petitions go wrong

• One party resiles before the second motion. Consent must exist at both motions. Where a party withdraws consent, the court cannot pass a decree on the joint petition, and the matter usually converts into contested litigation. This is the single strongest argument for structuring payments so that the paying party is not left having performed in full with no decree.
• Payment made outside the record. Alimony handed over privately, with nothing recorded before the court, leaves no enforceable trail. Payments should be by traceable banking channel and recorded in the statements.
• Other cases left pending. A DV Act complaint or a criminal case that is not withdrawn in the agreed sequence tends to reopen the entire negotiation.
• Vague custody terms. "Reasonable access to the father" is not a schedule. It is a future application.
• A party abroad. Appearance is required at both motions. Exemption from personal appearance and permission to appear by video conferencing may be sought, and courts have granted both, but it must be applied for rather than assumed.

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