How to Get a Mutual Divorce? Documents required according to landmark judgments on Section 13 B of HMA

Index

1. Introduction: The Legal Philosophy of Mutual Consent Divorce
2. Statutory Framework: Section 13B and the Legal Architecture
3. Judicial Interpretation in Harveen Kaur: When Appearance Becomes Impractical
4. Consent and Revocability in Rupali Gupta: A Question of Present Will
5. Procedural Narrative: Drafting First and Second Motion Petitions
6. Affidavits as Legal Instruments of Autonomy: Harveen and Rupali in Practice
7. Waiver of Cooling-Off Period: From Statutory Delay to Judicial Discretion
8. Document Formats: Narrated Drafts for Petitions and Affidavits
9. Conclusion

Synopsis

This article offers a comprehensive legal and procedural analysis of mutual consent divorce in India, with a specific focus on the evolving standards of consent, reaffirmation, and procedural fairness. It traces the doctrinal origins of Section 13B of the Hindu Marriage Act and analyses its contemporary judicial interpretation, particularly through the landmark decisions in Harveen Kaur v. Court of ADJ and Rupali Gupta v. Rajat Gupta. 

These cases redefined how courts approach substituted appearance and the revocability of consent, directly influencing how petitions and affidavits are drafted and evaluated.

Beyond explaining procedure, the article integrates these judgments into full-length narrative formats for first motion petitions, second motion reaffirmations, and affidavits—making it an indispensable guide for both practitioners and researchers. It concludes by reflecting on mutual divorce not as a bureaucratic exercise, but as a judicial process that dignifies the personal choice to part ways.

Grounds of Mutual Divorce and the Emergence of Consent-Based Dissolution

In India, the legislated regime of matrimonial disputes has progressively developed towards recognizing that irretrievable breakdowns in marriage need to be accompanied by dignified legal terminations instead of incessant adversarial struggles. Such a shift in jurisprudence is best exemplified in Section 13B of the Hindu Marriage Act, 1955, which legalizes divorce by mutual consent. 

It reflects a legal philosophy that recognizes the agency of both spouses to jointly arrive at the conclusion that their marital relationship has failed in substance and can no longer serve its social or personal purpose. The provision was not initially in the enactment but was enacted by the Marriage Laws (Amendment) Act, 1976, with growing acceptance of society of the reality that continuation of a fractured marriage under duress generally leads to more damage than its judicial termination.

A waiting period of six months comes thereafter, during which, if the parties still hold firm to their resolve, they have to appear once again before the court and move a second motion under Section 13B(2). Only then, on being satisfied that the consent remains and is free from coercion, pressure, or fraud, the court issues the decree of divorce.

But this otherwise sequential process is complicated with real-world intricacies. What if a party is unavailable or unable to attend the second stage? What if consent is revoked, or one party complains of inducement? Such cases have given rise to a series of important judicial precedents which construe the legal, procedural, and ethical requirements imposed on both parties and the family courts.

Amongst them, Harveen Kaur v. Court of Additional District Judge and Rupali Gupta v. Rajat Gupta are noteworthy authoritative elucidations of the evidentiary and volitional protections infused within the joint consent divorce mechanism.

Statutory and Jurisprudential Framework of Mutual Divorce in India 

The right under law to end a marriage by consent, while apparently obvious in a rights-oriented society, was originally not provided for in Indian matrimonial law. It was only through the passage of the Marriage Laws (Amendment) Act, 1976, that the legislature inserted Section 13B into the Hindu Marriage Act, 1955, thus recognizing that the institution of marriage cannot be sustained by legal coercion where there is total emotional and relational disintegration. This amendment was a dramatic jurisprudential change—from fault-based dissolution to a more equitable, autonomy-affirming conception of marital freedom.

Section 13B, under the reformed statute, makes provision for divorce a two-step procedure. The first step, enacted under sub-section (1), mandates that both spouses in the marriage have lived separately for a period not less than one year and that they have mutually agreed that the marriage be dissolved.

The law obliges the filing of a joint petition avowing the irretrievable breakdown of the marriage by such parties. But this concurrent filing itself does not lead to the issuance of a decree. The second phase, codified in sub-section (2), lays down what has come to be referred to as a 'cooling-off' period of six months. 
This time is constructed not as a bureaucratic obstacle, but as a moment of contemplation—an interval of reconciliation or withdrawal, during which the law attempts to balance the seriousness of a divorce against the potential for renewed cohabitation.

Nonetheless, the textual architecture of Section 13B does not exist in doctrinal isolation. It exists alongside a larger system of statutory and constitutional norms. The Family Courts Act, 1984, for example, not only entrusts jurisdiction with specially appointed family courts but also mandates them to try to reconcile prior to going in for adjudication.

The procedural behavior of these petitions, although regulated by the Code of Civil Procedure, 1908, is open to changes that allow for the special nature of family law hearings, with a tendency to favor substance over form. In addition, the evidential provisions, such as the admissibility of affidavits, declarations, and oral evidence, are steered by the Indian Evidence Act, 1872, though with contextual pragmatism.

Overlying these procedural enactments is the interpretive strength of the Indian Constitution, specifically Article 21, which upholds the right to life and personal liberty. In a milestone judgment in Amardeep Singh v. Harveen Kaur, the Supreme Court held that the six-month waiting period under Section 13B(2) is directory and not mandatory.

The Court argued that it would be an insult to the dignity and autonomy that Article 21 provides to force a couple to wait if the marriage has obviously failed. The judgment not only relieved in the facts of this case but also gave the key for a purposive and humanitarian approach to interpreting matrimonial statues.

Indian courts over time inserted more procedural guarantees within this template. Although sometimes uncodified, these precautions were judicially identified as an important aspect for keeping the character of mutual consent divorce sacred.

Judges also often interrogate the parties in open court to ascertain that consent is voluntary, not born of duress or coercion, and genuine. In some jurisdictions, courts have even insisted on a confirmation of mental fitness, particularly in cases where parties come under duress or third-party pressure is suspected.

Thus, the Indian legal system for mutual divorce is no longer simply a matter of mechanical compliance with statutory provisions. It is a compound regime based on legislative language, judicial meaning, and constitutional instincts. 

Within this intricate but precisely harmonized system, such cases as Harveen Kaur and Rupali Gupta have been crucial. These decisions have extended beyond the black-letter language to set the very parameters of consent, the procedural leeway surrounding appearance, and the deeper issue of how matrimonial autonomy must be honored without being open to exploitation or strategic litigation.

Judicial Enlargement of Procedural Flexibility: Harveen Kaur and the Affidavit's Role in Mutual Divorce

The case of Harveen Kaur v. Court of Additional District Judge, raised a fundamental question before the Delhi High Court was whether the personal presence of both sides at the second motion hearing under Section 13B(2) of the Hindu Marriage Act was a rigid requirement under the statute, or whether, in situations that precluded personal appearance, an affidavit could be accepted. 

The judgment, written by Justice Vikramajit Sen, not only replied to this question in the affirmative but created a precedent of procedural flexibility, particularly in cases where technical compliance insistence would be counter to the very purpose of the provision.

In Harveen Kaur, the petitioner-wife and her husband had jointly filed a divorce petition under Section 13B(1). When the issue came before the second stage of Section 13B(2), Harveen Kaur, who had gone abroad, indicated her continued consent in the form of a sworn affidavit, stating that she could not return to India due to health issues and visa issues. 

The family court refused to accept the affidavit and rejected the petition on the single ground that both parties need to be physically present for the second motion. The petitioner petitioned the High Court, objecting to the trial court's excessively literal reading of the statute.

In its judgment, Delhi High Court clarified that the statutory cooling-off period was intended not to be a ritualistic requirement, but to provide a procedural window of opportunity for reconciliation. 

Whatsoever that statutory purpose is served, once that was achieved, and only where there was no doubt as to continued mutual consent, the court regarded an affidavit to be a substantive substitute for personal appearance. In paragraph 12, Justice Sen noted:

"In situations where a spouse has categorically reaffirmed their intention in an affidavit on oath and where the petition does not indicate any collusion or coercion, judicial insistence on personal presence would defeat the intent of Section 13B(2)."

The ruling established two crucial legal tests. To begin with, it construed the requirement of appearance in Section 13B(2) as not a strict directive, but a procedural protection to guarantee the authenticity of consent. 

Second, it ruled that such protection could be met through other evidentiary avenues, particularly in a situation of genuine hardship, as long as the affidavit is clear, solemnly affirmed, and declares the continuation of consent.

What is particularly significant is that the Court did not weaken the requirement of consent but underlined the imperative to construe the law in a way that enhances its substantive justice objectives rather than giving undue importance to form over substance. 

The Court also ordered that where affidavits are used in place of appearance, they should be attested or notarized by competent foreign authorities in order to maintain evidentiary integrity.

This decision was subsequently referred to in a number of other cases where foreign-residing parties could not attend the second motion because of immigration limitations, work restrictions, or health issues. It also opened the door for video conferencing, which is now widely employed in mutual divorce cases involving NRIs. 

Essentially, Harveen Kaur upheld that the essence of mutuality cannot be undermined by rigid formalism, and that pragmatic case-specific logic has to be applied by courts while enforcing procedural expectations.

Above all, the judgment directly affected family court formats of drafting. Now, wherever one party cannot physically attend or appear, an affidavit in the spirit of Harveen Kaur—declaring sustained consent, absence of coercion, and acceptance to be bound by the proceedings—is considered procedurally valid and legal. The affidavit is generally filed with the second motion petition, and courts now regularly note the grounds for accepting such documentary consent in the decree itself.

Revocation of Consent and the Boundaries of Enforceability: The Judicial Perspective in Rupali Gupta v. Rajat Gupta

In Rupali Gupta v. Rajat Gupta, which was decided on 3rd September 2018 by the Delhi High Court, the court had to address a question that tends to haunt mutual consent proceedings: Can a party withdraw his/her consent after moving a joint divorce petition but before the second motion hearing? 

The case forced the court to consider the very nature of Section 13B(2) and to establish the jurisprudential boundaries of enforcing matrimonial consent once given.

The facts of the case are representative of many contemporary divorces based on estrangement but weighed down by complicated expectations. Both settled and educated Delhi-based husband and wife had lived apart for almost two years before filing mutual consent proceedings.

Both of them jointly filed a Memorandum of Understanding at the time of the first motion, detailing permanent alimony arrangements, custody of child, and distribution of property. This MoU was the foundation of their petition under Section 13B(1), and both the parties gave full and willing consent to end the marriage.

But before the second motion, the wife, Rupali Gupta, revoked her consent, alleging a change of heart, dissatisfaction with some terms, and emotional distress. The husband, Rajat Gupta, approached the court, asking the court to decree a mutual divorce by enforcing the previous MoU as a valid contract.

The Family Court rejected his request, holding mutual consent to be required at both levels, and that no antecedent understanding could take the place of statutory necessity of fresh consent at second motion stage. 
This resulted in the appeal with the High Court, where the main issue involved was whether MoU and earlier statements could enforce the court to grant divorce even if there has been withdrawal later on.

In a lengthy and cogent judgment, Justice Pratibha M. Singh restated the basic legal stance that mutual consent is a living and ongoing requirement, rather than a once-made statement. The Court stressed that the second motion hearing under Section 13B(2) is no formality, but a procedural checkpoint of essence through which the court can ascertained if the parties still adhere to their initial consent. In paragraph 13 of the judgment, the Court noted:

"The second motion under Section 13B(2) of the Hindu Marriage Act is not automatic or routine. It involves a re-affirmation of consent in an independent manner and an option to reconsider the decision to go their separate ways permanently."

Moreover, in paragraph 16, the Court declined the argument that the MoU was an enforceable contract within the realm of matrimonial cases. It stated:

“A Memorandum of Understanding, while executed by both sides, cannot be accorded the status of an irrevocable expression of assent. It cannot take precedence over statutory mandate of free, voluntary, and contemporaneous consent in the second stage."

The ruling reaffirmed the dictum that mutual divorce is not a contractual transaction but a judicially supervised process imbued with directives of voluntariness, autonomy, and equitability.

Even if one party had previously accepted financial consideration or compromised under an MoU, they have the unfettered right of withdrawal of consent before the decree. The sole civil remedy for violation of MoU, the Court explained, would be a concurrent civil action for enforcement of contract, and not in enforcing divorce.

This ruling is crucial as it definitively determined that Section 13B is not a legal fiction to be fulfilled once papers are submitted. It is not a passive role that the court plays. Instead, the judge should be affirmatively assured that the parties still desire a divorce, and that such a choice is not determined by fear, pressure, emotional trauma, or transactional remorse. 

In a nation where matrimonial consent frequently functions within multi-faceted emotional and cultural terrain, the verdict in Rupali Gupta serves as a protection against pseudo-earlier agreement turn coating. 

After this verdict, the majority of family courts in the nation now include oral confirmations in second motion hearings, where the judge explicitly asks both sides to indicate their ongoing readiness to divorce.

The affidavits presented at this point are also supposed to indicate not only consent but also confirmation of mental acuity, lack of coercion, and awareness of finality. These conditions have found their way into templates prepared by legal aid organizations, judicial training documents, and court-managed guidelines.

JOINT PETITION UNDER SECTION 13B(1) OF THE HINDU MARRIAGE ACT, 1955

IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT AT [CITY]
MATRIMONIAL PETITION NO. ____ OF 20__
IN THE MATTER OF:

1.    [Name of Husband],
Son of [Father’s Name],
Resident of [Full Address],
Aged ___ years,
…Petitioner No. 1

AND

2.    [Name of Wife],
Daughter of [Father’s Name],
Resident of [Full Address],
Aged ___ years,
…Petitioner No. 2

JOINT PETITION UNDER SECTION 13B(1) OF THE HINDU MARRIAGE ACT, 1955 FOR A DECREE OF DIVORCE BY MUTUAL CONSENT

MOST RESPECTFULLY SHOWETH:

1. That the Petitioners were lawfully married on [date], at [place], according to Hindu rites and ceremonies. The marriage was duly consummated and the parties lived together at the matrimonial home in [city].
2. That after the marriage, the Petitioners cohabited as husband and wife until [month/year], and out of the said wedlock, [mention children if any, or state "no children were born"]. Due to irreconcilable differences and continued incompatibility, the relationship deteriorated, making it impossible for the Petitioners to continue living together as spouses.
3. That the Petitioners have been living separately for a period exceeding one year, i.e., since [date], and all efforts at reconciliation and mediation have failed. The parties have mutually agreed that their marriage has broken down irretrievably and there remains no possibility of reunion.
4. That both Petitioners are fully aware of the consequences of divorce and have mutually agreed to dissolve the marriage voluntarily, without any force, fraud, undue influence or coercion from any quarter.
5. That the parties have executed a Memorandum of Understanding dated [date], settling all matters related to alimony, maintenance, child custody, and distribution of assets. A copy of the MoU is annexed herewith as Annexure A. The Petitioners undertake to abide by the terms of the MoU upon the grant of final decree.
6. That both Petitioners affirm that their consent to this petition is genuine, voluntary, and continuing. They understand their right to withdraw consent prior to the passing of the decree under Section 13B(2).
7. That the present petition is filed bonafide and in the interest of justice.

PRAYER

It is most respectfully prayed that this Hon’ble Court may:
a) Record the joint statements of the Petitioners and take the petition on file;
b) Fix a date for second motion proceedings under Section 13B(2) after expiry of the statutory period;
c) Pass such other and further orders as may be deemed just and proper in the facts and circumstances of the case.

[City]
[Date]

Petitioner No. 1 Petitioner No. 2
(Signature) (Signature)

VERIFICATION

We, the above-named Petitioners, do hereby verify that the contents of the above petition are true and correct to our knowledge and belief and nothing material has been concealed therefrom.

Verified at [City] on this [Date].

Petitioner No. 1 Petitioner No. 2
(Signature) (Signature)

SECOND MOTION PETITION UNDER SECTION 13B(2) OF THE HINDU MARRIAGE ACT, 1955

IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT AT [CITY]
MATRIMONIAL PETITION NO. ____ OF 20__
IN THE MATTER OF:

1.    [Name of Husband],
Son of [Father’s Name],
Resident of [Full Address],
Aged ___ years,
…Petitioner No. 1

AND

2.    [Name of Wife],
Daughter of [Father’s Name],
Resident of [Full Address],
Aged ___ years,
…Petitioner No. 2

JOINT PETITION UNDER SECTION 13B(2) OF THE HINDU MARRIAGE ACT, 1955 FOR GRANT OF FINAL DECREE OF DIVORCE BY MUTUAL CONSENT

MOST RESPECTFULLY SHOWETH:

1. That the Petitioners had jointly filed a petition under Section 13B(1) of the Hindu Marriage Act, 1955 before this Hon’ble Court on [date], which was duly registered as Matrimonial Petition No. ___ of 20__.
2. That the said petition was filed on the ground that the Petitioners have been living separately for more than one year and had mutually agreed to dissolve the marriage on account of irretrievable breakdown and incompatibility.
3. That more than six months have passed since the filing of the first motion petition, and no reconciliation has taken place during this period. The Petitioners confirm that they have not resumed cohabitation and remain firm in their mutual decision to dissolve the marriage.
4. That both Petitioners appear before this Hon’ble Court voluntarily and without any coercion, fraud, or undue influence, and reaffirm their consent for divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act, 1955.
5. That the parties have resolved all matrimonial issues amicably, including matters relating to maintenance, alimony, child custody, and property, as recorded in the Memorandum of Understanding dated [date], already placed on record during the first motion.
6. That both Petitioners are fully aware of the legal consequences of this proceeding and declare that their decision remains voluntary, conscious, and unambiguous.
7. That there are no pending proceedings between the parties in any other court relating to the present marriage, nor is there any legal impediment to the grant of the final decree.

PRAYER

It is therefore most respectfully prayed that this Hon’ble Court may be pleased to:
a) Allow this second motion under Section 13B(2) of the Hindu Marriage Act, 1955;
b) Pass a decree of divorce by mutual consent, thereby dissolving the marriage solemnised between the Petitioners on [marriage date];
c) Pass such other and further order(s) as may be deemed fit and proper in the interest of justice.

[City]
[Date]

Petitioner No. 1 Petitioner No. 2
(Signature) (Signature)

VERIFICATION

We, the above-named Petitioners, do hereby solemnly affirm and state that the contents of the above petition are true and correct to our knowledge and belief. No part of it is false and nothing material has been concealed therefrom.

Verified at [City] on this [Date].

Petitioner No. 1 Petitioner No. 2
(Signature) (Signature)

AFFIDAVIT OF PETITIONER NO. [1/2] IN SUPPORT OF SECOND MOTION UNDER SECTION 13B(2)

(When Personal Appearance Is Dispensed With in View of Harveen Kaur)

IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT AT [CITY]
MATRIMONIAL PETITION NO. ___ OF 20__
IN THE MATTER OF:

[Name of Petitioner No. 1]
...Petitioner No. 1

AND

[Name of Petitioner No. 2]
...Petitioner No. 2

AFFIDAVIT OF PETITIONER NO. [1/2]

I, [Full Name], aged about ___ years, son/daughter of [Father’s Name], currently residing at [Complete Overseas Address], do hereby solemnly affirm and state as under:

1.  That I am the Petitioner No. [1/2] in the above-mentioned divorce petition under Section 13B of the Hindu Marriage Act, 1955. I am fully conversant with the facts and circumstances of the case and am competent to swear this affidavit.
2. That the joint petition under Section 13B(1) was filed by me along with my spouse, Petitioner No. [2/1], on [date], before this Hon’ble Court, seeking dissolution of our marriage by mutual consent.
3. That I hereby confirm and reaffirm my free and continuing consent to the dissolution of our marriage, without any pressure, coercion, undue influence, threat or misrepresentation from any person, including my co-petitioner or his/her family.
4. That I have not resumed cohabitation with Petitioner No. [2/1] since the filing of the first motion petition and I have no intention of reviving the matrimonial relationship.
5. That I understand the nature and consequences of these proceedings and reiterate that my consent remains unaltered, genuine, and voluntary.
6. That I am unable to appear personally before this Hon’ble Court for the second motion due to the following reason(s):
   [State clearly: e.g., "ongoing medical treatment", "immigration restrictions", "residing abroad on long-term visa", etc.]
7. That I request this Hon’ble Court to accept this affidavit as compliance with the requirements of Section 13B(2), in view of the precedent laid down by the Hon’ble Delhi High Court in Harveen Kaur v. Court of ADJ, 2003 (2) HLR 282.
8. That I am willing to join the proceedings via video conferencing if so directed by this Hon’ble Court and undertake to cooperate with all procedures as may be deemed necessary.
9. That I have executed this affidavit in full awareness and understanding of its legal implications.

DEPONENT
(Signature)
(Name)

VERIFICATION

I, the above-named Deponent, do hereby verify that the contents of this affidavit are true and correct to my knowledge and belief, and nothing material has been concealed therefrom.

Verified at [City, Country] on this [Date].

DEPONENT
(Signature)

AFFIDAVIT OF REAFFIRMATION OF CONSENT UNDER SECTION 13B(2) OF THE HINDU MARRIAGE ACT, 1955

(In Light of Rupali Gupta v. Rajat Gupta, Delhi High Court)

IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT AT [CITY]
MATRIMONIAL PETITION NO. ___ OF 20__
IN THE MATTER OF:

[Name of Petitioner No. 1]
...Petitioner No. 1

AND

[Name of Petitioner No. 2]
...Petitioner No. 2

AFFIDAVIT OF PETITIONER NO._____

I, [Full Name], aged ___ years, son/daughter of [Father’s Name], resident of [Full Address], do hereby solemnly affirm and state as under:

1. That I am the Petitioner No. [1/2] in the present joint petition for divorce by mutual consent filed under Section 13B of the Hindu Marriage Act, 1955.
2. That the said petition was jointly filed on [date], following our mutual decision to dissolve the marriage due to irreconcilable differences and complete breakdown of the matrimonial relationship.
3. That I confirm that since the filing of the first motion, I have not resumed cohabitation with Petitioner No. [2/1], and the status of separation remains unchanged.
4. That I have reviewed the petition and the terms of the Memorandum of Understanding dated [date] (if any), and I hereby affirm that I continue to give my free, informed, and voluntary consent to proceed with the second motion under Section 13B(2) of the Act.
5. That I further affirm that I understand my legal right to withdraw this consent at any time before the final decree is passed, and I state on oath that I am choosing not to withdraw my consent. My decision to proceed with this divorce remains entirely voluntary and is not influenced by any promise, pressure, or prior undertaking.
6. That I am aware of the consequences of a divorce decree, and I seek the same as a matter of personal choice and legal finality.
7. That I request this Hon’ble Court to accept this affidavit as valid reaffirmation of my consent in support of the second motion under Section 13B(2), and to be pleased to grant the decree of divorce accordingly.

DEPONENT
(Signature)
(Name)

VERIFICATION

I, the above-named Deponent, do hereby verify that the contents of this affidavit are true and correct to my knowledge and belief, and nothing material has been concealed therefrom.

Verified at [City] on this [Date].

DEPONENT
(Signature)

Conclusion

Mutual consent divorce in India has matured into a dignified legal process rooted in autonomy, procedural fairness, and constitutional respect for personal liberty. Far from being a mechanical route to marital dissolution, it now demands thoughtful engagement from both litigants and courts.

The judgments in Harveen Kaur and Rupali Gupta have been instrumental in shaping this evolution, ensuring that the reaffirmation of consent is genuine and voluntary, and that procedural requirements serve justice—not obstruct it.

Today, family courts expect more than statutory compliance; they require honesty in narrative, clarity in consent, and a recognition that each petition carries human weight. Through judicial interpretation and evolving practice, mutual divorce has come to reflect not just the end of a marriage, but the law’s commitment to graceful parting through lawful means. As this branch of law continues to develop, it must do so with the care and consistency that the dignity of both marriage and its dissolution deserve.