Divorce petition format: mutual consent and contested
Spouses who have lived separately for at least one year and agree that the marriage should end can file a joint petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. The second motion follows after six months (and within 18 months); the Supreme Court has held the six-month period can be waived in suitable cases (Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746).
Key points
- Mutual consent: Section 13B HMA; Section 28 Special Marriage Act, 1954; Section 10A Divorce Act, 1869 (two years’ separation).
- Contested divorce on grounds such as cruelty, desertion for two years or adultery: Section 13 HMA.
- Jurisdiction (Section 19 HMA): where the marriage was solemnised, where the respondent resides, where the parties last resided together, or where the wife resides if she is the petitioner.
- Petitions are heard by the Family Court where one has been set up.
The law: old and new provisions
| Subject | Law now | Before 1 July 2024 |
|---|---|---|
| Divorce by mutual consent (Hindus) | Section 13B Hindu Marriage Act, 1955 | — |
| Contested divorce (Hindus) | Section 13 Hindu Marriage Act, 1955 | — |
Which court or authority
Family Court (or District Court) under Section 19 HMA.
What the document should contain
- Details of the marriage (date, place, ceremony) and children
- Date of separation and that the parties have lived apart for at least a year
- Settlement terms: alimony, stridhan, custody, visitation, withdrawal of cases
- Statement that consent is free and not obtained by force, fraud or undue influence
- Prayer for a decree of divorce
- Affidavits of both parties
Documents to attach
- Marriage certificate or wedding photographs and invitation
- Address proof of both parties
- Settlement agreement
- Income details if alimony is involved
Procedure
- File the joint petition (first motion) with affidavits; statements are recorded
- Wait six months (or apply for waiver) and move the second motion within 18 months
- Statements recorded again; decree of divorce passed
Common mistakes
- Separation of less than one year at filing
- Settlement terms left vague (especially custody and payments)
Frequently asked questions
Can the six-month waiting period in mutual consent divorce be waived?
Yes. In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held the period is directory and can be waived where the parties have settled and reconciliation is not possible.
Where can a divorce petition be filed?
Under Section 19 HMA, where the marriage was solemnised, where the respondent lives, where the couple last lived together, or, if the wife is the petitioner, where she lives.