Section 13B vs Section 13(1) of the Hindu Marriage Act

Under the Hindu Marriage Act, 1955, there are two broad ways to end a marriage. Section 13B lets both spouses ask for divorce together. Section 13(1) lets one spouse ask the court for divorce on a specific legal ground. This guide compares the two sections. For a general comparison of the two routes, see mutual vs contested divorce in India.

What is Section 13B?

Section 13B is divorce by mutual consent. Both spouses file one joint petition saying they have lived separately for at least a year, cannot live together, and have agreed that the marriage should end. No fault has to be alleged or proved. Read the full breakdown in Section 13B explained.

What is Section 13(1)?

Section 13(1) lists the grounds on which one spouse can petition for divorce even if the other does not agree. The petitioner must prove the ground in court. The main grounds include:

• Adultery: voluntary sexual intercourse with someone other than the spouse.
• Cruelty: physical or mental cruelty, as the courts interpret it.
• Desertion: the other spouse has deserted the petitioner for a continuous period of at least two years before the petition.
• Conversion: the other spouse has ceased to be a Hindu by converting to another religion.
• Unsoundness of mind, or a mental disorder of such a kind that the petitioner cannot reasonably be expected to live with the spouse.
• Other grounds listed in the Act, such as a communicable venereal disease, renouncing the world by entering a religious order, or the spouse not being heard of as alive for seven years or more.

Section 13(2) gives a wife some additional grounds, for example if the husband has been guilty of rape, sodomy or bestiality. Your lawyer can tell you which grounds fit your facts.

Section 13B vs Section 13(1) at a glance

• Who files: 13B is a joint petition. 13(1) is filed by one spouse against the other.
• Agreement needed: 13B needs both spouses to agree, and to keep agreeing until the decree. 13(1) does not.
• Proof: 13B needs no proof of fault. 13(1) needs the ground to be proved with evidence and witnesses.
• Time: 13B has a one-year separation requirement and a six-month gap between motions, which can sometimes be waived. 13(1) goes through a full trial and any appeals, and often takes much longer. Exact time depends on the court.
• Cost: 13B is usually less expensive because there is less litigation. A contested case typically involves more hearings, so more lawyer's fees.
• Tone: 13B is cooperative. 13(1) is adversarial, with allegations and counter-allegations on record.

Who should consider which?

Section 13B generally suits couples who both accept the marriage is over and can agree on alimony, children and property. It keeps things private, shorter and calmer.

Section 13(1) may be the only option when the other spouse refuses to cooperate, or when there are serious issues such as cruelty or desertion that the petitioner wants the court to decide. It is a harder road. You will need documents, messages, medical records or witnesses to prove the ground, and the outcome is for the court to decide, so it cannot be predicted.

Things people often miss

• In a 13B case, either spouse can withdraw consent before the decree. If that happens, the mutual route stops and the other spouse would need to look at 13(1) or other options.
• Under 13(1), alimony, custody and property are decided by the court if you cannot agree, rather than by your own settlement.
• The Act generally does not allow a divorce petition in the first year of marriage, except in limited cases of exceptional hardship, which the court must permit.
• Allegations made in a contested case stay on the court record, which can affect how both sides feel about settling later.

Not sure which route fits your situation? Start your mutual divorce and a lawyer will review your case, or read the step-by-step process.