Legal Guide by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B. (University Rank 2), LL.M. (Dispute Resolution), UGC–NET, Ph.D. (Pursuing)
Two things almost everyone believes about mutual consent divorce are wrong.
The first is that the six-month waiting period is compulsory. It is not — it has been waivable since 2017, and a great many couples sit out six months they never needed to serve because nobody applied.
The second is that either spouse can walk away from the consent at any time before the decree, for any reason at all. That was the rule for over thirty years. In April 2026 the Supreme Court qualified it, and the qualification is significant enough that most guides on the internet are now out of date.
What changed in 2026.
In Dhananjay Rathi v. Ruchika Rathi, 2026 INSC 360 (13 April 2026), the Supreme Court held that where the parties have entered into a full and final settlement agreement — particularly a mediated one that has been acted upon — it is not open to a party to resile from it and refuse to sign the second motion. Withdrawal remains possible only in exceptional circumstances: fraud, coercion, undue influence, or non-compliance by the other party with the terms of the settlement.
This guide sets out the provision, the two-motion procedure, how to get the cooling-off period waived, what the Supreme Court can do that no other court can, and where consent can and cannot now be withdrawn.
1. Section 13B at a Glance
| Particulars | Position |
|---|---|
| Provision | Section 13B, Hindu Marriage Act, 1955 (inserted by the Marriage Laws (Amendment) Act, 1976) |
| Separation required | One year or more, immediately preceding the petition |
| Structure | Two motions — a joint petition, then a second motion confirming consent |
| Gap between motions | Not earlier than 6 months, not later than 18 months from presentation of the petition |
| Is the 6 months mandatory? | No — directory, and waivable (Amardeep Singh v. Harveen Kaur) |
| Forum | Family Court where established; otherwise the District Court, per Section 19 HMA |
| Equivalent provisions | Section 28, Special Marriage Act, 1954; Section 10A, Divorce Act, 1869 |
2. The Three Conditions Under Section 13B(1)
The joint petition must establish three things. All three, not two.
- The parties have been living separately for a period of one year or more;
- They have not been able to live together; and
- They have mutually agreed that the marriage should be dissolved.
"Living separately" does not mean living at different addresses.
This is the most commonly misunderstood element, and it usually works in the client's favour. In Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, the Supreme Court held that the expression means not living as husband and wife, whatever the physical arrangement. A couple sharing the same house — often because neither can afford to move, or because of children or elderly parents — can still be "living separately" if they have not been living as spouses. Plead the date from which cohabitation as husband and wife ceased, and plead the facts that show it.
The Section 14 bar most petitions forget
Section 14 HMA prohibits the presentation of any petition for divorce within one year of the date of marriage, except with the leave of the court on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. This applies to Section 13B as well.
In practice the two periods usually run together — a couple who separated soon after marriage will complete one year of separation at about the same time the Section 14 bar lifts. But where the separation predates a short reconciliation, check both clocks independently.
3. The Two-Motion Procedure
| Stage | What happens |
|---|---|
| First motion | Joint petition filed under Section 13B(1) with both affidavits. Both parties appear; statements are recorded. The court may refer the matter for counselling or mediation. |
| Cooling-off | Six months — unless waived on application. |
| Second motion | Both parties move the court again under Section 13B(2), confirming that consent subsists. Statements recorded afresh. |
| Decree | After hearing the parties and making such inquiry as it thinks fit, the court declares the marriage dissolved with effect from the date of the decree. |
Two timing points that decide cases:
The eighteen-month outer limit is real. Section 13B(2) requires the second motion not later than eighteen months from the date the petition was presented. If the parties let that date pass without moving the second motion, the petition does not survive — and a fresh petition means starting the whole process again. Diarise the date on the day you file.
The court still has a reconciliation duty. Section 23(2) HMA requires the court, before granting relief, to make every endeavour to bring about a reconciliation where that is possible consistently with the nature of the case. Section 9 of the Family Courts Act, 1984 imposes a similar obligation. Section 13B is not excluded from either. Expect a referral; treat it seriously, because a failed and recorded mediation is one of the conditions for waiver.
4. Waiving the Six-Month Cooling-Off Period
This is where competent representation makes a visible difference to the client, and where most petitions simply do not ask.
In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Supreme Court held that the period under Section 13B(2) is directory and not mandatory, and that the trial court may waive it. The Court laid down four conditions, all of which should be satisfied:
| # | Condition |
|---|---|
| (i) | The six-month period under Section 13B(2), in addition to the one year of separation under Section 13B(1), is already over before the first motion itself — in effect, eighteen months of separation. |
| (ii) | All efforts at mediation and conciliation — including under Order XXXIIA Rule 3 CPC, Section 23(2) HMA and Section 9 of the Family Courts Act — have failed, with no likelihood of success from further efforts. |
| (iii) | The parties have genuinely settled their differences, including alimony, custody of children and any other pending issues. |
| (iv) | The waiting period will only prolong their agony. |
On procedure, the Court said the waiver application may be moved one week after the first motion, giving reasons for the prayer. Waiver remains in the discretion of the court concerned — it is not automatic on ticking the four boxes.
Read condition (i) carefully — it is the one that defeats most applications.
The eighteen months must have already elapsed before the first motion is filed. A couple who separated thirteen months ago and files immediately cannot get a waiver on the Amardeep Singh conditions, however complete their settlement. If the client is close to the eighteen-month mark, there is a real argument for waiting a few weeks before filing the first motion rather than filing at once — filing early can cost them the waiver and leave them worse off in time.
5. What Only the Supreme Court Can Do — Article 142
There is a second route, and it is important to be clear with clients that it is not available in their Family Court.
In Shilpa Sailesh v. Varun Sreenivasan, a Constitution Bench of five Judges held on 1 May 2023 that the Supreme Court, in exercise of its power under Article 142, may:
- Waive the six-month period under Section 13B(2) and dissolve a marriage by mutual consent without remitting the parties to the Family Court; and
- Dissolve a marriage on the ground of irretrievable breakdown — a ground which does not exist in the Hindu Marriage Act — where the marriage is totally unworkable and has broken down beyond repair.
Two limits the Bench was careful to state. Article 142 relief is not a matter of right; and a party cannot file a writ petition under Article 32 directly seeking dissolution on this basis. The jurisdiction is exercised on considerations of complete justice, usually in transfer petitions or appeals already before the Court.
And critically, following Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415, this power belongs to the Supreme Court alone. A Family Court or a High Court cannot dissolve a marriage on irretrievable breakdown, because it is not a statutory ground. Advising a client that their District Court can grant divorce for irretrievable breakdown is simply wrong.
6. Withdrawal of Consent — The Rule, and the 2026 Qualification
Consent under Section 13B is not a one-time act. It must exist at the first motion and must still exist when the decree is passed.
The traditional rule
In Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, the Supreme Court held that mutual consent is a sine qua non for a decree under Section 13B, and that it "must continue till the decree is passed" — there must be a valid subsisting consent when the matter is heard. Either party could therefore withdraw consent at any time before the decree. This was reaffirmed in Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338 and Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234.
The 2026 qualification
Dhananjay Rathi v. Ruchika Rathi, 2026 INSC 360, decided on 13 April 2026, addresses what happens when the withdrawal follows a settlement that the other side has already performed.
The parties married in 2000, separated around 2022–23, and in 2024 entered a mediated settlement agreement under which the husband paid ₹89,00,000 and returned jewellery, in exchange for a mutual consent divorce and the withdrawal of all claims. He performed. She then declined to sign the second motion, saying she had withdrawn consent.
"Though it is well within the law, for any party, to withdraw consent at any stage before grant of divorce by mutual agreement, however, in case a compromise deed or a settlement agreement has been entered in between the parties regarding the full and final settlement of their disputes, then in that case it is not open for the party to step back from the terms and conditions so arrived between them."
— Dhananjay Rathi v. Ruchika Rathi, 2026 INSC 360, para 29
The Court identified the exceptions in which a party may still resile: fraud, coercion, undue influence, or non-compliance by the other party with the terms of the settlement. It then dissolved the marriage under Article 142.
And the cruelty line from the High Courts
Running alongside this is a body of High Court authority holding that an unjustified withdrawal of consent can itself constitute mental cruelty, founding a contested petition under Section 13(1)(ia):
- Rajiv Chhikara v. Sandhya Mathur, 2016 SCC OnLine Del 6224 — a party who enjoyed the benefits of the settlement and then withdrew consent without just cause added to the cruelty suffered by the other spouse.
- Beena M.S. v. Shino G. Babu, 2022 SCC OnLine Ker 778 — withholding consent for mutual separation can itself cause mental agony amounting to cruelty.
- Ritu Sethi v. Vivek Sethi, 2023 SCC OnLine Del 8317 — driving the other spouse to believe the disputes were about to end and then withdrawing can amount to cruelty.
How to state the position accurately to a client.
The statutory right to withdraw consent before the decree still exists — Sureshta Devi has not been overruled. What has changed is the consequence. A withdrawal that follows a performed settlement is now liable to be treated as an abuse of process, may be overridden by the Supreme Court under Article 142, and may independently be pleaded as cruelty. The distinction the courts are drawing is between a genuine change of mind and a tactical withdrawal to extract better terms.
7. Drafting the Settlement — The Practitioner's Real Work
Dhananjay Rathi makes the settlement agreement the centre of gravity of the case. Draft it accordingly.
- Make it full and final in terms. Recite expressly that it settles all disputes between the parties, and enumerate them — the divorce petition, maintenance under Sections 24 and 25 HMA and Section 125 BNSS, proceedings under the Domestic Violence Act, any Section 498A BNS complaint, dowry articles and stridhan, custody and visitation.
- Stagger the consideration against the motions. Do not pay the entire amount before the first motion. The standard structure is a tranche at the first motion and the balance at the second, by demand draft handed over in court and recorded in the statement. This is the single most effective protection against the problem in Dhananjay Rathi.
- Record performance in the statements. The court's record of the second-motion statement should note the instrument number and the fact of receipt. It converts a contractual dispute into a matter on the court's own record.
- Deal with stridhan and jewellery specifically. List the articles. A general recital that "all articles have been returned" invites later litigation.
- Provide for custody, visitation and education expenses with dates and mechanics, not principles. Note that under Section 26 HMA the court retains jurisdiction over minor children regardless of what the parties agree.
- Do not attempt to contract out of a child's maintenance. A child's right to maintenance is the child's, not the parent's to compromise.
- Get it mediated where possible. A settlement recorded before a court-annexed mediation centre carries materially more weight than one drawn up in chambers — and it also discharges Amardeep Singh condition (ii).
8. After the Decree
| Issue | Position |
|---|---|
| Effect of decree | The marriage stands dissolved with effect from the date of the decree. |
| Remarriage | Under Section 15 HMA, only after the time for appealing has expired without an appeal, or an appeal has been dismissed. Remarrying during the appeal period is a live risk. |
| Appeal | Section 28 HMA provides an appeal; where the decree is of a Family Court, Section 19 of the Family Courts Act applies. The limitation differs between the two provisions — check which governs your decree before advising on the appeal period or on remarriage. |
| Permanent alimony | Section 25 HMA. The court retains power to vary, modify or rescind on a change of circumstances, and on remarriage or unchastity. |
| Children | Section 26 HMA — the court may pass orders on custody, maintenance and education, and may vary them from time to time. The welfare of the child governs, not the parents' agreement. |
9. Common Mistakes
- Filing the first motion the day the client walks in. If eighteen months of separation is close, waiting can secure a waiver and finish the case sooner.
- Not applying for waiver at all. The court will not waive suo motu. No application, no waiver, six months gone.
- Pleading separate residence instead of separate living. Plead the cessation of the marital relationship and the facts supporting it.
- Paying the full settlement amount up front. The whole of the leverage disappears at that moment.
- Missing the eighteen-month outer limit and having to start again.
- Telling a client the District Court can grant divorce for irretrievable breakdown. It cannot. Only the Supreme Court, under Article 142.
- Assuming both parties can appear by video link. Personal appearance is ordinarily required in matrimonial proceedings, and the position on video conferencing has been restrictive. Confirm the practice of the court concerned before promising an overseas client they need not travel.
10. Quick Revision — For Exams and Vivas
- Provision: Section 13B HMA, inserted by the 1976 amendment. Cognates: Section 28 Special Marriage Act; Section 10A Divorce Act.
- Section 13B(1): living separately one year or more; unable to live together; mutually agreed to dissolve.
- Section 13B(2): second motion not earlier than 6 months, not later than 18 months from presentation.
- "Living separately" = not living as husband and wife — Sureshta Devi.
- Cooling-off period is directory, waivable — Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746; four conditions; application one week after first motion.
- Article 142: Shilpa Sailesh v. Varun Sreenivasan (Constitution Bench, 2023) — Supreme Court may waive the period and may dissolve on irretrievable breakdown; no Article 32 petition for it as of right. Only the Supreme Court — Anil Kumar Jain.
- Consent must subsist till the decree — Sureshta Devi; Smruti Pahariya; Hitesh Bhatnagar.
- But not after a performed settlement — Dhananjay Rathi v. Ruchika Rathi, 2026 INSC 360; exceptions are fraud, coercion, undue influence, non-compliance.
- Trap question: is irretrievable breakdown a ground for divorce under the Hindu Marriage Act? No. It is not in the statute; it is available only through Article 142, and only in the Supreme Court.
Conclusion
Section 13B was drafted for the least contentious kind of matrimonial case, and then surrounded with enough procedure to make it slow. The judicial correction has come in two instalments — Amardeep Singh removed the compulsory delay for couples who have genuinely finished, and Shilpa Sailesh gave the Supreme Court an explicit power to end marriages that are over in fact but not in law.
Dhananjay Rathi is the counterweight. Having made mutual consent divorce faster, the courts have made it harder to weaponise. A settlement that the other side has performed is no longer something a party can walk away from because the terms have started to look less attractive.
For the practitioner the lesson is that the case is won in the settlement, not in the petition. Draft it as a full and final settlement, enumerate every proceeding it covers, stagger the consideration against the two motions, get it recorded in mediation, and put performance on the court's record. Do that, and the second motion is a formality. Skip it, and you will find out how long eighteen months can be.
Disclaimer: This article is intended for general information and legal education only and does not constitute legal advice. It states the law as it applies to Hindus governed by the Hindu Marriage Act, 1955; the position under the Special Marriage Act, 1954, the Divorce Act, 1869 and the personal laws of other communities differs. The law stated is based on the bare provisions and the judgments cited, and readers should verify each citation and the current position against the full text of those judgments before relying on or citing them. Procedure, court fee, limitation for appeal and local practice vary between States and between courts. Every matrimonial matter turns on its own facts, and anyone contemplating or facing proceedings should consult a qualified advocate. Please read our Disclaimer for more details.
