Mutual consent divorce or contested divorce: time, cost, evidence and outcome

Mutual consent

Section 13B, Hindu Marriage Act. Joint petition, two motions, no fault to prove.

Contested

Section 13. One spouse petitions on a ground, the other defends, evidence is led.

Time

A mutual petition is measured in months. A contested one runs for years.

Which court

Family Court, Ghaziabad, District Court Complex, RDC. Monday to Saturday, 9 am to 9 pm at Chamber 817.

Every divorce in the Ghaziabad Family Court is one of two things. Either both spouses want it and file together under Section 13B, which is a mutual consent divorce, or one spouse wants it and the other does not, which is a contested petition under Section 13. The law, the time, the work and the way it ends are different in each. This article puts the two side by side so that a spouse deciding what to file, or deciding whether to settle a case that is already running, can see what each involves.

What each petition needs

A mutual consent petition needs three things and no fault. The spouses have lived separately for one year or more, they have not been able to live together, and they have agreed that the marriage should be dissolved. The petition is joint, signed by both, and carries the settlement that records what each has agreed about money, children and property.

A contested petition needs a ground. Section 13 lists them: adultery, cruelty, desertion for two years or more, conversion, unsoundness of mind, renunciation, and not being heard of for seven years, with further grounds available to a wife under Section 13(2) and the grounds in Section 13(1A) where a decree of judicial separation or restitution has not been acted on. The petitioner has to plead the ground and prove it. The respondent files a written statement denying it, and often a counter-claim.

How each runs in the Family Court

The mutual petition has two hearings that matter. At the first motion the spouses' statements are recorded and the court sends them to mediation. At the second motion, six months later unless the court waives the wait under Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the statements are recorded again and the decree is passed. The two motions have their own article.

The contested petition runs through the stages of a civil trial. Notice to the respondent, which takes longer when the respondent avoids it. Written statement. Mediation, which the Family Court orders in nearly every case. Framing of issues. Evidence of the petitioner, by affidavit and cross-examination. Evidence of the respondent. Arguments. Judgment. Each stage waits for a date in a court that hears hundreds of cases, and each adjournment costs a month or more. Interim applications for maintenance under Section 24, for custody, for the return of articles, run alongside and have their own hearings.

Evidence: the difference that decides most cases

In a mutual consent petition there is no evidence to lead. The court satisfies itself from the statements that consent is free, that the facts in the petition are true, and that the settlement is understood. The documents are the marriage proof, the identity of the spouses, and the settlement.

In a contested petition evidence is everything. Cruelty has to be shown through what was said, done and written, through witnesses who saw it, medical papers, police complaints, and the messages between the spouses. Desertion has to be shown as two years of absence with the intention to end cohabitation. Adultery has to be shown with the kind of proof that is rarely available. The respondent cross-examines on all of it. Since Rajnesh v. Neha, (2021) 2 SCC 324, both sides also file sworn affidavits of income, assets and liabilities, and the court fixes maintenance on them. A spouse who overstates or hides income in that affidavit is cross-examined on it, and the court draws its own conclusions.

Cost, measured in work

The chamber does not print fees, and the fees article explains how a mutual consent engagement is quoted. What can be said here is why the two cases cost differently. A mutual petition is a fixed amount of work: a settlement, a petition, two hearings. A contested petition is open-ended: dozens of hearings over years, interim applications, evidence, cross-examination, and often an appeal to the Allahabad High Court at the end. Each hearing is a day of the advocate's time and a day of the client's. The longer the case, the more it costs, and nobody can say at the start how long a contested case will run.

There is a second cost that is not money. A contested case is a public record of the worst of a marriage, read out in a courtroom at RDC. Children are drawn in. The families take sides. A mutual petition records an agreement and nothing else.

How each ends

A mutual consent petition ends in a decree that both spouses asked for, with the settlement already performed or secured. There is nothing to appeal, and the decree is rarely challenged. The practical result, alimony paid, custody settled, cases withdrawn, is in the spouses' hands and not the court's.

A contested petition ends in a judgment that one side wins and the other loses, or in dismissal when the ground is not proved, which leaves the spouses married and back where they started. The losing side can appeal. Maintenance, custody and the return of articles are decided by the judge on the evidence rather than agreed, and the orders are enforced through further proceedings. Many contested cases in Ghaziabad end not with a judgment but with a settlement reached in the second or third year, after both sides have spent what a mutual petition would have cost many times over.

Which to choose

Where the other spouse will agree, or can be brought to agree on fair terms, a mutual consent petition is better on every count that matters: time, cost, privacy, certainty, and the children. Where the other spouse refuses to agree, or demands terms that cannot be accepted, the contested petition is the only route, and it should be started with a ground that the evidence actually supports. The chamber at Chamber 817 reads the facts and says which case it is. Where it is a contested case, the chamber also keeps the door to a settlement open at every stage, because a mutual consent divorce remains available until the decree. The divorce page covers the contested route in detail.

Read next

• First motion to second motion: what happens at each hearing
• Lawyer fees for a mutual consent divorce: what the engagement covers
• Cooling-off period waiver: the Amardeep Singh test

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