Mutual Consent Divorce in Kerala: Procedure, Time and Settlement

When both spouses have accepted that the marriage is over, a divorce by mutual consent is almost always the better road. It is quicker than a contested case, far less expensive, and it lets the couple decide the terms on money, gold, property and children themselves instead of leaving them to a judge after years of evidence.

It is also a procedure with firm requirements. Petitions are returned for the wrong court, settlements fall apart between the first and second motion, and a spouse who agreed in January withdraws in June. This guide explains how mutual consent divorce works in the Family Courts of Kerala and how to get through it cleanly.

The route depends on the law under which the marriage was solemnised or the personal law of the parties.

Hindus, Buddhists, Jains and Sikhs file under Section 13B of the Hindu Marriage Act, 1955.

Marriages registered under the Special Marriage Act, 1954, including most inter-faith marriages, proceed under Section 28 of that Act, which follows the same pattern.

Christians file under Section 10A of the Divorce Act, 1869. The Act requires the couple to have lived separately for a minimum period before filing, but in December 2022 the High Court of Kerala declared that minimum separation requirement unconstitutional in Anup Disalva v. Union of India. The current position should be checked for your case at the time of filing.

Muslims may end a marriage by mutual agreement (mubara’at) or at the wife’s instance (khula) under personal law. A decree or declaration from the Family Court is often sought afterwards so that the dissolution is properly recorded.

Under Section 13B of the Hindu Marriage Act and Section 28 of the Special Marriage Act, three conditions must be met.

• The spouses have lived separately for at least one year before the petition is presented. Living separately means not living as husband and wife; it does not always require different houses.
• They have not been able to live together.
• They have both agreed, freely, that the marriage should be dissolved.

The petition is filed jointly before the Family Court within whose limits the marriage was solemnised, the couple last lived together, the respondent resides, or, where the wife is the petitioner, where she is residing.

1. Settle the terms first. Before anything is filed, the terms are agreed and written down: permanent alimony, return of gold and money, custody and visitation, division of property, and the withdrawal of any pending cases. A petition filed before the terms are settled is the most common reason these cases collapse.

2. File the joint petition. Both spouses sign a joint petition setting out the marriage, the period of separation, the fact of settlement and the terms, supported by affidavits.

3. First motion. Both spouses appear before the Family Court, which records their statements. Family Courts in Kerala may also refer the parties to counselling.

4. The interval. The second motion cannot be made earlier than six months after the petition was presented, and must be made within eighteen months.

5. Second motion and decree. The spouses appear again and confirm that they still consent. If the court is satisfied that the consent is genuine and the conditions are met, it passes a decree of divorce.

Yes, in the right case. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month interval is directory, not mandatory, and that a Family Court may waive it. The court considers whether the one-year separation and the six-month period have together already elapsed before the first motion, whether mediation and reconciliation efforts have failed, whether the parties have genuinely settled all their differences, including alimony and custody, and whether waiting would only prolong their distress. The application for waiver can be made a week after the first motion.

In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench of the Supreme Court also confirmed that the Supreme Court itself can dissolve a marriage by mutual consent under Article 142 of the Constitution without insisting on the waiting period, in appropriate cases.

Where waiver is granted, a mutual consent divorce in Kerala can be completed in a matter of weeks after filing. Where it is not, the usual time is around six to seven months from filing.

Permanent alimony. Usually a single lump sum, paid in instalments tied to the two motions, with the final amount paid at or before the second motion.

Gold, money and articles. In Kerala, the return of gold ornaments and money given at the time of marriage is often the most contested issue. The quantity, the form of return and the timing should be recorded precisely.

Children. Custody, a realistic visitation schedule, school holidays, travel abroad, and the father’s contribution to maintenance and education.

Property. Jointly owned property, loans taken jointly, and the transfer of shares should be dealt with in the settlement, with the documents executed on a fixed timeline.

Other cases. Any pending maintenance petitions, domestic violence proceedings or civil suits are withdrawn as part of the settlement. Where a criminal case has been registered, its closure may need an application before the High Court of Kerala, and the settlement should say who will take that step and when.

Many couples in these cases are Keralites working in the Gulf, the UK, Europe or North America. The petition can be prepared and filed here, and the Family Courts in Kerala have permitted appearance through video conferencing in suitable cases. Whether personal appearance can be dispensed with is decided by the court in each case, so the dates should be planned with that in mind.

A power of attorney holder can assist with the filing and follow-up, but the consent to divorce is personal and must come from the spouse. Documents signed abroad should be properly executed and attested so that the court accepts them.

Consent must continue until the decree is passed. The Supreme Court held in Sureshta Devi v. Om Prakash (1991) that either spouse may withdraw consent at any time before the decree, and the court cannot then grant a divorce by mutual consent. This is why settlements are structured so that payments and the return of gold are tied to the motions, and why terms should be clear enough that neither side has a reason to reopen them.

Where consent is withdrawn, the remaining option is a contested divorce on the grounds the law allows. The general guide on how to file for divorce in Kerala explains that route.

Adv. K Rajesh Kannan, a High Court of Kerala advocate with over 24 years of practice, advises on mutual consent and contested divorce, including for clients living abroad, from the terms of settlement to the documents each spouse needs, and takes up matrimonial appeals before the High Court of Kerala. Divorce cases before the Family Courts in Ernakulam and across Kerala are also handled through the office. The work covers negotiating and drafting the settlement, filing and appearing on both motions, applying for waiver of the waiting period where the facts support it, and closing connected cases.

See the Family Law page for the full range of matrimonial work.

Questions people often ask

Do both of us have to come to court?
Yes, both spouses ordinarily appear on the first and second motion. Where one of them is abroad, the court may permit appearance by video conferencing in a suitable case.

We live in the same house. Can we still say we lived separately?
Courts have accepted that spouses can live separately under one roof if they have not lived as husband and wife. The facts should be stated honestly in the petition.

Is alimony compulsory in a mutual consent divorce?
No. Alimony is part of what the spouses agree. The court will, however, want to see that the terms, particularly those relating to children, are fair and freely agreed.

Can we remarry immediately after the decree?
Once the decree is passed and no appeal lies against it, the parties are free to remarry. Because the decree is by consent, there is ordinarily no appeal on the merits.

This guide gives general information about the law in Kerala. It is not legal advice on any particular case.