divorce procedure or process, as per the Indian Legal system, fundamentally begins with the filing of a divorce petition. The manner in which this entire procedure of divorce in India works starts at the point at which the divorce petition is filed by one of the parties associated with the divorce process and notice of the same is served to the other one.

If things between you and your spouse are not good and you are facing difficulties and both of you have decided to part your ways legally, then you can file for a ‘mutual divorce’ under the Hindu Marriage Act, 1955. It is possible to file for divorce even if the other party is not willing to get a divorce - this is called as ‘contested divorce’. The procedure and steps involved in both of these have been discussed in this law-guide

How to file for a Mutual Divorce?

Section 13B of the Hindu Marriage Act, 1955 covers the provision of mutual consent divorce. There is a set procedure to file for it, as given under this section. The steps/procedure/requirements for filing a mutual divorce petition have been explained below:

1. Filing of a petition:
Firstly, a joint petition for dissolution of marriage for a decree of divorce may be presented to the family court by both the spouses on the ground that they have been living separately for a period of one year or more, or else stating that they have not been able to live together and they have mutually agreed to dissolve the marriage. This petition will be signed by both the parties.

2. Appearing before Court and scrutiny of the petition:
Both the parties will have to appear before the family court after the filing of the petition. The parties would appear with their counsels/lawyers. The court would scrutinize the petition along with all the documents that are filed. The court may even attempt to bring reconciliation between parties, however, if this is not possible, the divorce matter is proceeded with.

3. Passing of orders for recording of statements on oath:
Once the petition is scrutinized by the Court and it is satisfied, it may order the parties’ statements to be recorded on oath.

4. Order on First Motion and passing of 6 months period before Second Motion:
Once the statements are recorded, an order on the first motion is passed by the court. Post this step, a 6 months period is given to both the parties to divorce before they can file the second motion. The maximum period for filing second motion is 18 months from the date of presentation of the divorce petition in the family court, unless the petition is withdrawn in the meantime.

5. Second Motion and Final Hearing of the Matter:
Once the parties have decided to go ahead with the proceedings and appear for the second motion, they can do so and proceed with the final hearings. This step involves parties appearing and recording of statements before the Family Court. Recently, however, the Supreme Court has held that the 6 months period given to the parties can be waived off at the discretion of the court. Therefore, the cooling off period in cases where the parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties and if the court is of the opinion that the waiting period will only prolong their sufferings, this 6 months it can be waived off. If the 2nd motion is not made within the period of 18 months, the court will not pass any decree for divorce. It is also a settled law that either party can withdraw their consent at any time before the passing of the decree.

6. Decree of Divorce:
In a mutual divorce, both parties must have given consent and there shall not be any differences in contentions regarding alimony, custody of child, maintenance, property, etc. Thus, there needs to be complete agreement between the husband and wife for the dissolution of marriage. If the court is satisfied after hearing the parties that the allegations in the petition are true and that there cannot be any reconciliation and possibility of cohabitation, it can pass a decree of divorce declaring the marriage to be dissolved, based upon the facts and circumstances of the case. The divorce becomes final once the decree of divorce has been passed by the court

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