The Conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved.
Under these circumstances a Divorce by Mutual consent can be filed.
Steps in Court Procedure (13 B)
In all there are two court appearances in a mutual divorce
1. First A joint petition signed by both parties is filed in court. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Honourable Court.
2. Thirdly The 6 month period is given for reconciliation, (the honourable court gives a chance to the couple to change their mind)
3. Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing.
4. Divorce decree will be granted as the Honourable Court may deem fit.
Formalities to be complied with
(a) A petition is to be presented jointly by the parties to the marriage.
(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.
(c) The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.
(d) The parties have freely consented to the agreement of dissolution of marriage.
(e) The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred. But in Sureshta Devi v Om Prakash it has been held that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.
(f) The court must be satisfied as to the averments in the petition after making inquiry and after hearing the parties which are initiated by a joint motion of the expiry of six months from presentation of the petition. The expression "after hearing the parties" appearing in sub-section (2) of section 28 of the Act does not require the presence of the parties before the court. Affidavit-evidence is sufficient for this purpose by virtue of section 40 of the Act which attracts the Code of Civil Procedure 1908 and which provides in Order 19 for proof of any point by affidavits.
Foreign court decree of divorce or dissolution of marriage can be valid in India provided such decree is according to the provision of law in India as provided under section 13 of the Civil Procedure Code and Principle of law as laid down by the Indian courts. A foreign court divorce decree may be valid in India ONLY if the spouse had lived in that country and had consented to that country's jurisdiction.Under Section 13(e), Civil Procedure Code, the foreign judgment is open to challenge "where it has been obtained by fraud". Fraud as to the merits of the respondent's case may be ignored and his allegation that he and his wife "have lived separate and apart for more than three (3) consecutive years without cohabitation and that there is no possibility of a reconciliation" may be assumed to be true. But fraud as to the jurisdiction of the foreign court is a vital consideration in the recognition of the decree passed by that court.