One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
TL;DR: A mutual consent divorce needs both spouses to sign, twice, and it cannot be forced through if one side has gone silent. What you can do alone is send a formal legal notice through an advocate and, if there is no response, file a contested petition for divorce on grounds such as desertion. Doing nothing for years changes nothing at all.
Aniket Deshmukh's wife Shreya walked out of their Pune flat in March 2021. They had been married since November 2013. For the first few weeks he called her every evening. Then the calls stopped connecting. She had blocked him on WhatsApp, on Instagram, on his number.
He tried her father. For a while the older man listened and said the two of them should sort it out between themselves. Then the tone changed. Aniket was told plainly that his daughter wanted nothing more to do with him. So he stopped calling.
Four years went by like that. He worked at a private firm in Hinjewadi, drank more than he should, and left the rest of it alone. No notice. No petition. Nothing on paper saying the marriage was in trouble.
By mid-2025 he had sobered up and wanted it finished properly. His own attempts to reopen the conversation had gone nowhere, so he approached the Chamber of Advocate Sudhir Rao. A formal notice went out, the other side replied through their own counsel, and the dispute was taken to mediation at the Family Court instead of being litigated. Advocate Sudhir Rao's experience in matrimonial matters helped keep the matter out of a long contested fight, and a joint petition for mutual consent divorce was eventually filed, with the first motion recorded.
Key Facts of the Case
- Marriage solemnised in November 2013 at Pune; no children from the marriage were mentioned in the instructions received.
- The parties began living separately in March 2021, when the wife left the matrimonial home and moved to her parents in Nashik.
- All communication channels were blocked by the wife; there was no contact between the parties for roughly four years.
- Attempts by the client to speak to the wife's family also broke down, and the family later took a hostile position.
- No legal notice, petition or formal step had been taken during those four years; the separation existed only in fact.
- The client had no mutual consent on record and could not have filed a joint petition on his own.
- The matter was routed through a formal notice, an advocate-to-advocate reply and Family Court mediation, and ended in a joint petition for divorce by mutual consent.
The Direct Legal Answer
Is the marriage over just because we've lived apart for four years?
No. Living separately does not dissolve a marriage in India. The marriage subsists until a court passes a decree of divorce or the marriage is otherwise declared void. That is why the client was still legally married and could not remarry.
Can I get a mutual consent divorce if my spouse has blocked me everywhere?
Not unilaterally. A divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 requires both spouses to jointly present the petition and both to appear again at the second motion. If one side refuses to sign or stops responding, mutual consent is off the table, and the only route left is a contested petition.
Should I file for restitution of conjugal rights first?
Sometimes. A petition under Section 9 of the Hindu Marriage Act asks the court to direct the spouse to resume cohabitation. It is a legitimate step, and if the other side does not comply, it becomes evidence of desertion or of the marriage having broken down. It is not mandatory, though, and it does add time and cost.
What about maintenance?
Separation does not switch off financial claims. A spouse can seek maintenance pendente lite and litigation expenses during proceedings, and permanent alimony at the end, under the Hindu Marriage Act. If there is a child, custody and child support come into the picture as well.
Advice in Such Cases
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Second, put something on record early. A properly drafted legal notice, sent by registered post and courier with tracking, creates proof of the date you tried. That date matters later.
Third, stop negotiating through relatives. Emotional conversations with a spouse's parents produce nothing that a court can use, and they often harden the other side.
Matrimonial matters turn on procedural details, from the correct ground to how separation is proved. An advocate who handles family law regularly will spot those issues faster than a general practice lawyer, and that usually means fewer hearings and less wasted time.
Applicable Sections of Law
- Section 13B, Hindu Marriage Act, 1955 — divorce by mutual consent, requiring a joint petition and two motions.
- Section 13(1)(ia) and 13(1)(ib), Hindu Marriage Act, 1955 — divorce on the grounds of cruelty and desertion respectively; desertion requires a continuous period of at least two years immediately before the petition.
- Section 9, Hindu Marriage Act, 1955 — restitution of conjugal rights.
- Section 24 and Section 26, Hindu Marriage Act, 1955 — interim maintenance and litigation expenses, and interim custody of children.
- Section 7, Family Courts Act, 1984 — jurisdiction of Family Courts over matrimonial disputes.
Jurisdiction — Where to File the Case
Matrimonial
Matrimonial petitions are not filed at whatever address the petitioner happens to be sitting in. Under Section 19 of the Hindu Marriage Act, 1955, a divorce petition goes to the District Court or Family Court with jurisdiction over one of a few defined places. Pick the wrong one and the matter is returned, which costs months.
The court has jurisdiction where any of the following is true:
- The marriage was solemnised (Pune, on these facts — the wedding took place there in November 2013).
- The respondent (the spouse) actually resides at the time of filing. Shreya had moved to Nashik, so Nashik qualified.
- The parties last resided together — again Pune, since they lived in the Hinjewadi flat until March 2021.
- The petitioner resides, in the limited circumstances the section allows, and always where the petitioner is the wife — a wife may file where she lives.
Because a mutual consent petition is filed jointly, the practical choice is usually the place where the respondent lives or where the couple last lived together. Both spouses have to appear in person, so filing 300 km from the other side's home is a way of guaranteeing that the second motion never happens.
Where a Family Court has been notified for the district, the petition goes there rather than to the ordinary civil court — Section 7 of the Family Courts Act, 1984 gives Family Courts jurisdiction over matrimonial disputes. Where no Family Court is notified, the district court handles it. Note that we are working from the husband's instructions alone; anything the wife's side has to say about the separation, or about why she left, is not in front of us, and it may well change how a court reads the four years.
What Should Have Happened Sooner
The four years of silence are the real problem in this file, and it is worth being blunt about why.
From March 2021 to mid-2025 nothing existed on paper. A court asked to believe that a marriage has broken down irretrievably wants to see a record — a notice, a complaint, an email, a message, a petition. Hearsay from a friend of the family about what was said in 2022 is worth very little. What the notice did, when it was finally sent, was create a dated document with a lawyer's signature on it, which is the first thing in the file that a court can actually read.
Delay also cuts both ways. The longer a spouse waits before claiming desertion, the more room the other side has to argue that the separation was by agreement, or that the waiting party had accepted it and moved on. That argument does not always win, but it has to be answered, and answering it costs hearings.
There is no fixed limitation period that kills a divorce petition if you wait, the way a money claim dies after three years. But "there is no deadline" is not the same as "delay is free."
How a Mutual Consent Divorce Actually Moves
Once both sides are on board, the sequence is predictable. What follows is the ordinary path; individual courts differ on how tightly they run their lists.
- The notice. An advocate sends a formal notice setting out the marriage, the separation, the terms proposed on alimony and property, and a time limit for reply — commonly fifteen days. Sent by registered post and by courier with tracking, so the delivery date is provable.
- The reply. Here it came through the other side's counsel. A reply is useful even when it is hostile, because it confirms the other side is represented and reachable.
- Mediation. Under Section 9 of the Family Courts Act, the court must make an effort at reconciliation, and matrimonial disputes are routinely referred to mediation before anything else. This is where the terms on money, jewellery, and any pending dues get settled — before they become disputed.
- The joint petition. Both spouses sign. It states that they have lived separately for at least a year, that they have not been able to live together, and that they have mutually agreed the marriage should end. Both must be living apart for a year or more before filing under Section 13B.
- First motion. Both appear, statements are recorded on oath, and the court satisfies itself that consent is genuine and not the product of pressure.
- The cooling-off period. Section 13B(2) requires a gap of at least six months, and no more than eighteen months, between the first and second motion. Courts have been permitted to waive this waiting period where reconciliation is plainly impossible and the delay would only prolong the parties' distress — but waiver is a discretion, not a right, and not every court grants it.
- Second motion. Both appear again. Consent is confirmed. The decree of divorce is passed.
If both sides cooperate, this usually runs somewhere between six months and eighteen months. If either side slows down, it runs longer. Anyone who tells you a mutual consent divorce will be over in a month is describing a court that does not exist.
Documents to Keep Ready
- Proof of the marriage — the certificate from the registrar, or in older cases the invitation card, photographs and any religious record.
- Proof of the separation date — a rent agreement, an electricity bill, a change of address, employer records.
- Address proof and identity documents of both parties, to the extent available.
- The notice and the reply, with postal receipts.
- Whatever survives of the communication record — messages, emails, call logs. If she blocked you, the block itself is not evidence you can produce, but the last message you sent before it is.
- Income proof for both sides, if maintenance or alimony is on the table — salary slips, ITRs, bank statements.
- Details of joint property, joint loans, and any jewellery or streedhan claims.
- For a joint petition, a signed set of agreed terms covering money, property and anything else the two of you settled in mediation.
What This Route Cannot Do
A mutual consent petition cannot be filed by one person. That is the whole point of it. If the other side will not sign the joint petition, or signs and then withdraws before the second motion, the petition is dismissed, and the Supreme Court has been clear that consent can be withdrawn at any point until the decree is passed. Nothing can compel a spouse to consent to a divorce.
What is left in that situation is a contested petition under Section 13 of the Hindu Marriage Act, 1955 — most commonly on the ground of desertion under Section 13(1)(ib), which requires the spouse to have abandoned the petitioner for a continuous period of at least two years immediately before the petition, without reasonable cause and without consent. Cruelty under Section 13(1)(ia) is a separate ground and carries a higher bar; four years of silence, on its own, is usually argued as desertion rather than cruelty.
Two warnings about a contested route. First, it is slow — contested matrimonial matters routinely run three to five years at the trial level, and longer if appealed. Second, "irretrievable breakdown of marriage" is not a ground for divorce under the Hindu Marriage Act. Only the Supreme Court, using its special constitutional powers, has dissolved marriages on that basis, and that is not something you can ask a Family Court for.
There is also the financial side, which does not disappear because the parties stopped speaking. Either spouse can claim interim maintenance and litigation expenses during the proceedings under Section 24 of the Act, and permanent alimony at the end under Section 25. A wife who has no independent income may also seek maintenance under Section 144 of the BNSS, 2023, and she has remedies under the Protection of Women from Domestic Violence Act, 2005, which only a woman can invoke. A husband facing a false or exaggerated cruelty complaint can seek anticipatory bail — the offence of cruelty by a husband or his relatives now sits at Section 85 of the Bharatiya Nyaya Sanhita, 2023 — but that is a separate fight from the divorce.
And where a spouse has genuinely vanished and cannot be traced at all, the court can permit substituted service by publication in a newspaper, and the matter can proceed ex parte. That takes time and requires an affidavit setting out the efforts made to find the person.
Frequently Asked Questions
How long does a mutual consent divorce take in India?
Between six months and eighteen months in most courts where both parties cooperate, counting from the first motion. The six-month gap between the first and second motion is statutory, and while courts can waive it, many do not. Add three to six months at the front for the notice, the reply and mediation.
My spouse agreed and then changed her mind. Can I force the second motion?
No. Consent must exist at both motions. If it is withdrawn before the decree, the joint petition fails. The only option then is to file a fresh petition on a contested ground such as desertion.
Do we have to be separated for a year before filing a mutual consent divorce?
Yes. Section 13B requires that the parties have been living separately for a year or more, and that they have not been able to live together. "Living separately" can include living under the same roof without a conjugal relationship, though that is harder to establish and courts look at it closely.
I don't know where my spouse lives now. Can I still file?
Yes, but the process changes. You file where you have jurisdiction, and if service cannot be effected normally, you apply for substituted service by newspaper publication. If there is still no appearance, the court can proceed ex parte. Expect this to add months, and expect the court to want an affidavit detailing every attempt you made to trace the person.
Will I have to pay maintenance even if she was the one who left?
Possibly. Maintenance is decided on the income and means of both parties and the standard of living during the marriage, not on who walked out. Desertion may be raised as a factor, and a spouse with independent income may get nothing, but the court has discretion. There is no rule that the person who left forfeits financial claims.
Can I remarry once the first motion is recorded?
No. You are still married until the decree is passed at the second motion. Remarrying in between is bigamy, and it also hands the other side a strong ground to oppose the divorce and to seek enhanced alimony.
Is a notice from an advocate actually necessary?
Not strictly — a petition can be filed without one. But a notice is the cheapest document in the file. It creates a dated record of when you tried, it sometimes produces a settlement without any court fee at all, and it is often the document that shows a court the marriage was in trouble on a specific day.
What to Send to the Chamber
If you are in the position Aniket was in six months ago — separated for years, no contact, nothing on paper — the first step is small. Send:
- The marriage certificate or invitation card, and the date and place of the wedding.
- The date the two of you stopped living together, and where each of you has lived since.
- Any notice, message or letter that passed between you, and the date of the last contact.
- A two-line note on what you want — a clean divorce, or a divorce with terms you want to negotiate.
You can write through /contact-us or book a consultation at /book. Bring whatever you have, including the awkward parts: the years you let pass, the messages you regret sending, the property in joint names. Those are the facts the petition has to be built around, and it is far easier to work with them at the start than to explain them to a judge later.
On many of these files there is no clever argument available. If the other side will not consent and there is no provable ground, there may be nothing to file that will succeed, and you should hear that before you pay a fee rather than after. On others, the delay is explainable, the desertion is provable, and the matter moves faster than you expect.
This article is general information about Indian matrimonial law and is not legal advice on your own situation. Every case turns on its own facts.
Advocate Sudhir Rao, Supreme Court of India