Mutual Consent Divorce


Mutual Consent is the process by which both parties reach an amicable separation by filing a petition in the Court under 13 B of the Hindu Marriage Act. It is the means of coming out of a marriage with the consent of the husband as well as the wife. The husband and wife have to reach a consensus in order for this to reach a happy conclusion. Issues to be included are alimony or maintenance. There is no minimum or maximum limit to maintenance. It could be any amount or it could also be mutually decided between the parties that no amount is to be paid. Child custody also plays a part in mutual consent divorces wherein the couples mutually and amicably decide the custody to be shared or joint or exclusive depending upon the understanding between them.

The parties are required to wait for a year from the date of marriage before the filing of a mutual consent divorce Petition. They also have to stay separately as husband and wife for a year or more before the filing of the Petition for divorce by mutual consent.

The petitions are to be filed in the family court of the city/district where both the partners resided together for the last time i.e. their matrimonial house, where the marriage took place or at the place of the permanent residence of both husband and wife. This divorce Petition is to signed by both the parties before submitting the same to the family court. After the filing of Petition and recording of the statements and the counselling compliances, the court generally adjourns the matter for six months after which the parties are to present themselves in court again for a second motion confirming the mutual consent earlier filed along with counselling process. Only after this second motion and after the court verifying both the parties the final order of mutual consent divorce is granted. It is the hope of the Court that in the six months of adjournment the parties withdraw their application. It is also known as the cooling off period wherein the parties realize that they perhaps do not want a divorce. Any of the parties is free to withdraw the application. In the event of a party withdrawing consent, there is no option left to the other party but to file a regular contested petition for divorce under the appropriate provisions of the statutory personal laws.

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