Pre-requisites for applying for divorce by mutual consent as under Section 13B of Hindu Marriage Act, 1955 are:
1. The couple has been living separately for a period of one year or more.
2. The couple is unable to live in co-habitation.
3. The couple mutually agrees to dissolution of marriage.
‘Living separately’ can also be construed to mean living under the same roof but not living as husband and wife. This has been laid in the judgment of Smt. Sureshta Devi v. Om Prakash , where the Supreme Court of India opined that ‘living separately’ means not living like husband and wife and that it has no reference to the place of living.
Divorce decree on the grounds of mutual consent is obtained from the court in broadly two stages. First being when the couple jointly files petition for divorce by mutual consent (signed by both parties). Statement of both parties is recorded, which concludes the first motion. Thereafter, a ‘cooling-off’ period is given by the court to the parties to reconcile their differences. If after six months and before eighteen months from the date of filing for divorce the parties do not return to court for divorce, then their differences are considered resolved and no divorce may be granted after this period. But if during this period the parties return to the court for a divorce decree by court, and the petition has not been withdrawn, then the court may as per its discretion pass a decree for dissolution of marriage. The second motion is the second and final stage, where the parties after the ‘cooling-off’ period return to the court, not being able to reconcile, for a divorce decree.
In the case of a Christian marriage, divorce by mutual consent is governed by Section 10A of The Divorce Act, 1869 which states one of the requisites to be that the couple has been living separately for a period of 2 years.
Assuming that it was on March 15, 2016 when you and your husband filed a petition for divorce by mutual consent in the court, and that statements of you and your husband have been recorded, then between September 16, 2016 and September 16, 2017 you and your husband may return to the court for the second motion and the divorce decree, provided that neither you or your husband withdraws the petition.