When both spouses agree that the marriage is over, a divorce by mutual consent is the quickest and least bitter route. It avoids proving cruelty or desertion, and it lets the couple settle money, children and property on their own terms. This note explains how it works for Hindu marriages before the Family Court at Lucknow, and the points where cases most often get stuck.
Who can file
Section 13B(1) of the Hindu Marriage Act, 1955 allows both spouses to present a joint petition on the ground that they have been living separately for a period of one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved. All three must be true when the petition is filed.
Where to file in Lucknow
Section 19 of the Act says a petition may be presented to the court within whose local limits:
- the marriage was solemnised;
- the respondent resides at the time the petition is presented;
- the parties last resided together; or
- where the wife is the petitioner, she is residing on the date the petition is presented.
In Lucknow, these petitions are heard by the Family Court, which exercises the jurisdiction of the district court in matrimonial matters under the Family Courts Act, 1984.
The steps
- Settlement. Agree the terms first and put them in writing. The petition records them.
- First motion. The joint petition is filed with supporting affidavits. Both spouses appear and their statements are recorded.
- The waiting period. Under Section 13B(2), the second motion is made not earlier than six months and not later than eighteen months after the petition was presented, if it has not been withdrawn in the meantime.
- Second motion and decree. Both spouses confirm that they still consent. If the court is satisfied, after hearing them and making any inquiry it thinks fit, it passes a decree of divorce.
Can the six months be waived?
In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six month period is not mandatory and can be waived by the court in suitable cases. The factors include whether the one year of separation and the six month period have already passed before the first motion, whether mediation has failed, whether the parties have genuinely settled alimony, custody and other issues, and whether waiting would only prolong their suffering. An application for waiver is usually filed after the first motion.
In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench held that the Supreme Court itself can use its power under Article 142 of the Constitution to waive the waiting period and grant divorce by consent, and can even dissolve a marriage on the ground of irretrievable breakdown. That power belongs to the Supreme Court alone. The Family Court decides under Section 13B and the Amardeep Singh factors.
What the settlement should cover
- Alimony: a single lump sum, or instalments, with the dates on which each payment is due and how it is linked to the second motion
- Children: custody, visitation, school and holiday arrangements, and maintenance
- Stridhan and belongings: what is returned, by whom and when
- Property: any jointly owned house, loans and bank accounts
- Other cases: which cases each side will withdraw, including maintenance, domestic violence and criminal cases, and the stage at which they will be withdrawn
- No further claims: a clause that neither side will raise further claims once the terms are performed
Most failed mutual divorces fail at the second motion, when one side has paid and the other withdraws, or the reverse. Tying payments to stages of the case avoids that.
Documents to bring
- Proof of marriage: a marriage certificate, wedding invitation or photographs
- Proof of address of both spouses
- Passport size photographs of both
- Details of income and assets, which the court may ask for when alimony is settled
- Copies of any pending cases between the spouses
- The draft settlement terms
Marriages under the Special Marriage Act
If the marriage was solemnised or registered under the Special Marriage Act, 1954, the corresponding provision is Section 28. It has the same structure: a joint petition after living separately for one year or more, and a second motion not earlier than six months and not later than eighteen months after the petition is presented. Marriages under other personal laws are governed by their own statutes.
Frequently asked questions
How long does a mutual consent divorce take in Lucknow?
The second motion cannot be made earlier than six months after the joint petition is presented, so a typical case takes a little over six months. Where the conditions laid down in Amardeep Singh v. Harveen Kaur are met, the Family Court may waive that period.
Can one spouse withdraw consent after the first motion?
Yes. In Sureshta Devi v. Om Prakash (1991), the Supreme Court held that consent must continue until the decree, and either party can withdraw it before the decree is passed. This is why a clear written settlement matters.
Do both spouses have to appear in court?
Ordinarily both appear to make their statements. In Amardeep Singh, the Supreme Court said the court may use video conferencing, and may permit genuine representation through close relations such as parents or siblings, where a party cannot appear for a sufficient reason.
We married outside Lucknow. Can we file here?
Yes, if Lucknow is where you last resided together, or where the respondent resides, or where the wife resides when she is the petitioner. Section 19 of the Hindu Marriage Act lists the places where a petition can be presented.
What happens to the other cases between us?
The settlement should say which cases will be withdrawn, and when. A criminal case that cannot simply be withdrawn may need a petition to the High Court to quash it on the basis of the settlement.
This article explains the general legal position for information only. It is not legal advice, and the outcome of any matter depends on its own facts and the rules that apply to it.
Related: Divorce and family matters in Lucknow.