Divorce By Mutual Consent


Marriage is the harmony of two people to come together and pledge their love for each other and be call husband and wife. This is a legal union meaning it involves law, customs, rules and beliefs. Marriages are considered to make in heaven, but in an ideal world, sometimes things do not work out that way, and it becomes difficult to live together. Divorce is a way that a couple can end their marriage. Divorce means when the married couple decides to partway from the marriage.

Divorce under Hindu Marriage Act

Divorce is defined under section 13 of the Hindu Marriage Act. When divorce proceedings are done, all the marital commitments are lifted, and after that, both the parties are free to marry whomever they want. The marriage can be ended in 2 ways, namely judicial separation and divorce:

Judicial SeparationDivorce
It is a way that the spouses can live apart from each other, but this does not end the marriage, and the spouses will still be husband and wife. In the case of Judicial Separation, the parties cannot marry someone else during this period. During this period, there should be explicit consent if the parties want to establish sexual relation; otherwise, if the consent is missing, then the spouse can be charged under section 376B under which if a man tries to start intercourse with his spouse without the consent during the period of judicial separation he can face prison up to 2 years with fine or both.when a proceeding under section 13 of the Hindu Marriage Act, which talks about divorce, is completed, then the marriage will come to a complete end. The marital commitment ends for the parties, and they can then get married to whomever they like.


 The grounds under section 13(1) where a petition of divorce is filed are :

  • If a person had a sexual relationship with a person other than his wife or husband
  • If a person had deserted the spouse for at least two years which providing any reasonable cause as to why he/she has done such an act
  • If the person treats the spouse with cruelty after they have married 
  • If the person had converted to some other religion and cease to be a Hindu
  • If the person is of unsound mind which is incurable and the actual condition in such that the petitioner cannot rationally live with the spouse
  • If the spouse has renounced the world for finding the truth or for seeking god
  • If the spouse’s whereabouts are not known or heard from by the people who would have heard about it, that person would have been alive for seven years or more. 

The divorce by mutual consent is mentioned under section 13B of the Hindu Marriage Act. It means when both the spouses believe that they can no longer carry on the marriage. For the divorce to be of mutual consent, certain conditions are to be fulfilled:

  • Parties should be residing apart– For the spouses to be applied under this section, they must be living apart for a minimum of 1 year. The term “living separately” means that they can live in the same household but must have remoteness. If they are fulfilling this condition, they can also apply for divorce under this section. This same condition was also elucidated in the case of Surestha Devi v Om Prakash where the Court held that the term “Living Separately” does not only mean residing in different places but can also mean living in a similar household and still be apart. 
  • Parties could not live together-The legislation related to divorce has been made so that it would give the spouses all the chance to resolve their differences and try to overcome the difference and continue the marriage. Sometimes, this becomes very stressful, and the only option left for the spouses is to apply for divorce. The Court recommends couple therapy and mediation session for the couple, and if even then spouses do not want to live together, then the Court will grant will their divorce. The parties are allowed a period of 6 months known as a cooling period to give them time to reconsider the decision, which may be increased to 18 months.  
  • Parties intent to reconsider marriage– In the case where the Court has ordered a mediation session, the couple may rethink their decision and start to give their marriage another go. This is usually done in a cooling period which may give them a new perspective about their marriage. The demand for divorce is withdrawn when the first motion is pronounced, and after 18 months, the couple fails to file the second motion.

Divorce by mutual consent under Muslim Law

The divorce under Muslim Law by mutual consent did not exist in earlier times until the Dissolution of Muslim Marriage Act, 1939 came into existence and gave the Muslim couple a right to end their marriage. Two ways are there to end the marriage by mutual consent:

A simple meaning of this word is “to lay down”. In this case, the husband will surrender his rights to his wife. To end the marriage, the husband offers some compensation or anything permissible to be awarded as a dower to the wife from his share of the property. The essentials of Khula are:

An offer must be presented wife’s side.
There must be compliance with the offer by the husband.
The iddat period must have passed.   

The criteria under Shia law is different as once the husband has complied with the wife’s offer, he cannot back out of it, but in the case of a wife, she can claim the consideration even when the iddat period is going on.    
The Mubarat means when the conjugal obligations are broken. The mutual consent of both parties is necessary for ending the marriage. In this type of mutual divorce, the offer can be given from any side, and if either party accepts it, it cannot be reversed. The iddat period must present. In the Shia law, the spouses can go for Mubarat if they can no longer continue their marriage. 


Marriage is a big responsibility and needs to be taken seriously. However, sometimes things do not work out, and in that case, getting a divorce seems like the only option. The period in completing the divorce proceedings is long because the law wants the couple to reconsider their decision. It is better is if the couple files for divorce by mutual consent as it might not create bad blood between the couple, and they can finally get on with their new lives happier. 

Animesh Sharma

Animesh Sharma is from Jaipur, Rajasthan. He has completed B.A. LL.B (Hons) from Manipal University Jaipur. He like to play football, listen to music, play piano, play games.

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