Who can use Section 13B
Section 13B of the Hindu Marriage Act, 1955 lets both spouses together ask the court to end the marriage by mutual consent. The petition must show that they have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed the marriage should be dissolved. “Living separately” means not living as husband and wife; it does not always require different houses. For marriages registered or solemnised under the Special Marriage Act, 1954, the parallel provision is Section 28.
Consent must be free throughout. Either spouse can withdraw consent before the decree, and the court must be satisfied that the consent is genuine at the time it passes the decree.
First motion, second motion and the waiting period
The joint petition is presented as the first motion, and both spouses usually appear and record statements. Section 13B(2) then provides that the second motion is made not earlier than six months and not later than eighteen months after presentation. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period is directory and the family court may waive it in suitable cases, considering factors such as the length of separation, whether mediation has failed and whether the parties have settled all issues.
In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench held that the Supreme Court can dissolve a marriage under Article 142 in appropriate cases. That power belongs to the Supreme Court; it does not change the procedure before family courts. This draft does not request a waiver; add one only on advice.
Choose the correct court
Under Section 19 of the Hindu Marriage Act, the petition may be presented to the district or family court within whose jurisdiction the marriage was solemnised, the respondent resides, the parties last resided together, or the wife is residing on the date of presentation, among other grounds. Choose the ground that actually applies and state it in the petition.
Settle children, alimony and belongings clearly
Write the settlement in clear terms: who will have custody of each child, visitation arrangements, child maintenance, the amount and schedule of any permanent alimony, and the return of stridhan and other belongings. Vague terms lead to later disputes. Children’s welfare is the court’s paramount concern, and the court may examine custody terms. If other cases are pending between the spouses, record how they will be handled, but do not assume a court will close them automatically.
Frequently asked questions
How long must we be separated?
Section 13B(1) requires living separately for one year or more before presenting the petition.
Is the six-month waiting period compulsory?
The Supreme Court in Amardeep Singh v. Harveen Kaur (2017) held it can be waived by the court in suitable cases. It is not automatic.
Can one spouse withdraw consent?
Yes. Consent must continue until the decree; the court will not pass a decree if either spouse withdraws.
Do we both have to appear in court?
Courts generally require both spouses to appear and record statements, though some courts allow video appearance in suitable cases. Check with the court.
Are my edits saved?
No. Edits reset when you leave the builder. Download your copy first.
Related formats
Official sources
- India Code — Hindu Marriage Act, 1955
- India Code — Special Marriage Act, 1954
- Supreme Court of India — judgments
- eCourts Services — case status
This page gives general information, not legal advice. Forms, fees and timelines are set by each State and can change — confirm on your State portal before applying.