Mutual Consent Divorce under Section 13B of the Hindu Marriage Act and Section 28 of the Special Marriage Act

In Indian matrimonial law, mutual consent divorce represents a significant shift toward recognizing individual autonomy and dignity in marital relationships. It allows spouses to terminate their marriage amicably, without levelling blame or engaging in prolonged litigation. Two key legal provisions govern this process: Section 13B of the Hindu Marriage Act, 1955, and Section 28 of the Special Marriage Act, 1954.

What is Mutual Consent Divorce?

Mutual consent divorce allows both spouses to dissolve their marriage jointly, on the grounds that they have been living separately and are unable to live together, with no hope of reconciliation. It reflects a more dignified and less acrimonious route to ending a marriage.

1. Mutual Consent Divorce under Section 13B of the Hindu Marriage Act, 1955

Applicability

This section applies to couples who are both Hindus, including Buddhists, Sikhs, and Jains.

Legal Requirements

• Separation Period: The parties must have been living separately for at least one year prior to filing the petition.
• Ground: The parties must mutually agree that the marriage has irretrievably broken down and that they are unable to live together.
• Filing Stages:
  1. First Motion Petition: Filed jointly in the appropriate family court.
  2. Cooling-Off Period: A six-month interval is mandatory
  3. Second Motion: After the cooling-off period, both parties must appear again to confirm their consent.
  4. Final Decree: If the court is satisfied that the consent is voluntary and issues like alimony, custody, and property division are settled, the decree of divorce is granted.

Note: The mutual consent must continue throughout the process. Either party may withdraw consent any time before the final decree is passed. If either party withdraws consent before the final decree, the petition becomes void.

1. Mutual Consent Divorce under Section 28 of the Special Marriage Act, 1954

Applicability

This section applies to marriages solemnized under the Special Marriage Act, typically involving inter-faith or civil marriages.

Legal Requirements

• Separation Period: The parties must have been living separately for at least one year.
• Filing Jurisdiction: A joint petition may be filed in the district court where:
  • The marriage was solemnized;
  • The couple last resided together; or
  • Either party currently resides.

Procedure

• Similar to the Hindu Marriage Act, the divorce process involves the filing of a joint petition, a possible cooling-off period, and a second motion confirming continued mutual consent.
• The court evaluates whether consent is genuine and all terms (maintenance, custody, etc.) have been mutually agreed upon.

Key Considerations in Mutual Consent Divorce

• Alimony/Maintenance: Should be agreed upon mutually, either as a lump sum or monthly maintenance.
• Child Custody: Can be sole, joint, or shared, as per mutual agreement and the best interests of the child.
• Property Settlement: All movable and immovable assets should be addressed in the mutual agreement.

Advantages of Mutual Consent Divorce

• Time-saving and less expensive.
• Avoids public mudslinging and emotional trauma.
• Allows the couple to part on respectful terms.
• Suitable for couples who have peacefully separated.

Conclusion

Mutual consent divorce under Section 13B of the Hindu Marriage Act and Section 28 of the Special Marriage Act enables spouses to legally separate with dignity and mutual respect. It offers an efficient, cost-effective, and less adversarial path to dissolution, reflecting a mature and humane outlook in Indian family law.

For couples who have irreconcilable differences yet wish to avoid contested proceedings, this is a legally sound and compassionate route.