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How to get a mutual consent divorce within six months?

Shivendra Pratap Singh

Advocate

20/08/2022

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Question: I was married to my boyfriend when I was studying in B.Tech. We solemnised our marriage in a temple. How to get a mutual consent divorce within six months? All those things happened in hush-hush. No one knew about our marriage but we got registration of our marriage before the marriage registrar. We never lived together as a husband-wife because we were studying in B.Tech and after the completion we both were placed in different companies in 2017.

Now my parents are searching for a bridegroom for me and I’m also willing to marry a guy of my parents’ choice. I have talked to my boyfriend (husband) and he is also willing to end our marital status. He has been in a relationship with a girl and he is planning to marry her. How can we get a mutual consent divorce within six months? Please suggest. We both are living in Delhi. 

Asked from: New Delhi

You did not mention that when your marriage was solemnised. But according to the facts of your case, it seems that your marriage was solemnised before 2017. Your husband and you agree to end this nuptial knot. Hence, you should file a mutual consent divorce under Section 13B of the Hindu Marriage Act. 

The mandatory period of separation for one year as required under section 13B has met. You have been living separately for more than five years. However, your marriage is solemnised and registered but in reality you both are unwilling partners. 

This marriage is purposeless for yours therefore, no need to prolong this relationship further. Hence, you can move a petition under Section 13B for mutual consent divorce. Generally the court, upon filing of mutual consent divorce, gives a long date for six to eighteen months. This period is genetically treated as a second motion. After the second motion the court proceeds further and pass a decree of divorce.  

In Nikhil Kumar vs Rupali Kumar AIR 2016 SC 2163, (2016) 13 SCC 383 the Hon’ble Supreme Court has held that the Supreme Court can waive the statutory period of second motion under Article 142 of the Constitution of India. 

The Supreme Court can waive the second motion as required under Section 13B(2) of the Hindu Marriage Act 1955. But no need to approach the Supreme Court only for waiver of second motion. You can file a mutual consent divoce in the Family Court in Delhi. One week after the filing of divorce petition you should move a waiver application in the Family court.

In Amardeep Singh V. Harveen Kaur AIR 2018 SC (Civ) 41  the Supreme Court has held that, in mutual consent divorce, the court can waive the statutory period of six months after considering the following facts:

  1. Separation of parties is already over before the first motion itself.
  2. There is no likelihood of success in mediation or conciliation efforts. 
  3. Parties have genuinely settled their differences including alimony, custody of child or any other pending issues between them. 
  4. The waiting period will only prolong their agony. 

So, you may move a waiver application stating the facts that you haven’t been living as spouse for a single day, there are no differences or issues regarding the maintenance, custody of child etc. You both have agreed to end this nuptial knot. 

The court may admit your waiver application and proceed further to pass a decree of mutual consent divorce. If you prepare a settlement deed then the court may grant a decree within six months from the date of filing of the divorce petition. 

If the court rejects your waiver application then you should file a writ petition before the High Court and take a direction from the High Court to waive the second motion. The High Court in the guidelines of Hon’ble Supreme Court, passed in Amardeep Singh, may direct the family court to waive the period of second motion and proceed further. Thereafter you can get mutual consent divorce in six months from the date of filing.   

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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