Mutual consent Divorce Petition within one year of Marriage

SHIKSHA KUMARI versus SANTOSH KUMAR MAT.APP.(F.C.) 111/2025 Delhi High Court

Is a court mandated to stall divorce by mutual consent, thrusting unwilling parties – not into marital bliss, but into a matrimonial abyss? – Justice Anup Jairam Bhambani Author of Judgment

The heated debate constantly arose in every less than one-year vintage marital relationship that whether the partners can file mutual consent divorce before one year of its solemnization despite the fact of irretrievable breakdown in their marriage. The prior mentioned question well discussed in the matter of Shiksha Kumari versus Santosh Kumar MAT.APP.(F.C.) 111/2025.

The legal questions referred to the Full Bench read as follows: ―

(a) Whether a petition under Section 13B(1) of the Hindu Marriage Act can be filed by the parties before completing the period of separation of one year?

(b) If the answer to the above question is in the affirmative, whether the period of six months between the presentation of the First Motion under Section 13B(1) of the Hindu Marriage Act and the Second Motion under Section 13B(2) of the Hindu Marriage Act, can be waived off by the learned Court even though the parties have not been living separately for more than one year on the date when such waiver is prayed for?

RELEVANT PROVISION UNDER HMA 1955

Section 13B HMA –  (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months¹ after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Section 14 HMA – No petition for divorce to be presented within one year of marriage.— (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

This priormentioned references arose from the decision of a Division Bench of Hon’ble Delhi High Court in Sankalp Singh vs. Prarthana Chandra 2013 SCC OnLine Del 855. In Sankalp Singh the Division Bench has said that in cases of exceptional hardship or exceptional depravity, as contemplated in the proviso to section 14(1) of the HMA, the court may entertain the first motion for divorce by mutual consent before the 01-year separation period is over, but the second motion must be allowed and the divorce decree must be granted only after the parties have resided separately for at least 01-year

Essentials of section 13 B(1)-HMA : (i) They have been living separately for a period of one year, (ii) They have not been able to live together, and (iii) They have mutually agreed that marriage should be dissolved.

DECISION

ISSUE NO.1 – We (Bench) are of the view that the first question of law framed for consideration before us –viz., whether the statutory period of 01-year prescribed under section 13B(1) of the HMA as a pre-requisite for presenting the first motion, can be waived – already stands answered in the affirmative by the Division Bench in Sankalp Singh invoking the proviso to section 14(1); and we find no reason to deviate from that judicial view. We may clarify that no decision of the Supreme Court has been brought to our notice which may have overruled Sankalp Singh or laid down law to the contrary.

Re-articulating the legal principle in Sankalp Singh therefore, it is clarified that the 01-year period stipulated under section 13B(1) of the HMA, for presenting the first motion may be waived at the discretion of the Family Court or the High Court. Consequently, it is legally permissible for a court to entertain a first motion even prior to the expiry of the 01-year separation period.

The procedural framework contained in the proviso to section 14(1) of the HMA can be pressed into service in relation to section 13B(1) of the HMA; and in appropriate cases the proviso to section 14(1) can be invoked to entertain the first motion, to save parties from remaining trapped in a manifestly unworkable matrimonial relationship.

ISSUE NO.2 – It must be noticed however, that when section 14 of the HMA was enacted, the provision for divorce by mutual consent under section 13B was not part of the statute, which (latter) provision was introduced by way of the amendment to the HMA in 1976. Therefore, section 14 as originally contemplated, applied (only) to contested divorce petitions filed under section 13 of the HMA, which were based on fault-theory‘. Also noteworthy is the fact, that simultaneously with the introduction of section 13B in the HMA vidé the 1976 amendment, permitting divorce by mutual consent, the Legislature also reduced the time period prescribed before a divorce petition could be presented under section 14, from 03 years to 01 year.

It begs the question however, that if waiver of the 01-year period is permissible in contested cases, then why should the same 01-year period prescribed under section 13B(1) of the HMA be treated as sacrosanct or immutable, especially when parties approach the court seeking divorce by mutual consent.

In Sankalp Singh the Division Bench has said that in cases of exceptional hardship or exceptional depravity, as contemplated in the proviso to section 14(1) of the HMA, the court may entertain the first motion for divorce by mutual consent before the 01-year separation period is over, but the second motion must be allowed and the divorce decree must be granted only after the parties have resided separately for at least 01-year, as contemplated in section 13B(1). Sankalp Singh also says that the 06-month gap stipulated between the first motion and the second motion, cannot be waived, since that was the extant position of law at that time.

In effect therefore, in Sankalp Singh, what the Division Bench has done is to enforce the 01-year separation period, not at the stage of presentation of the first motion, but at the stage when the second motion is allowed and a divorce granted, by saying that the divorce decree would only take effect after the 01-year separation period is complete.

Compelling two consenting adults to remain legally tied in a matrimonial bond that has broken down – emotionally and/or physically – may constitute an infringement of their fundamental rights guaranteed under Article 21 of the Constitution, which provision inter-alia safeguards decisional autonomy, dignity, and privacy of an individual. Judicial interpretation has already recognised that the minimum 06-month cooling-off‘ period under section 13B(2) of the HMA is directory and not mandatory.

The proviso to section 14(1) of the HMA is applicable to proceedings under section 13B(1) of the HMA and can be invoked in proceedings for divorce by mutual consent. It is also noteworthy that in Amardeep Singh, the Supreme Court held that the timeline prescribed under section 13B(2) of the HMA is directory even though the phrase ―Subject to the provisions of this Act‖ appears only in section 13B(1) and not in section 13B(2). Therefore, in Amardeep Singh, the Supreme Court has held that the 06-month coolingoff period before filing of the second motion can be waived even without reference to the proviso to section 14(1) of the HMA.

The essential ingredient of section 13B of the HMA is the ‗consent of parties‘, and not the timelines set-out in that provision.

We may clarify, that we are not suggesting that the 01-year period stipulated in section 13B(1) of the HMA should be waived for the asking; but subject to the court being satisfied on the touchstone of the indicative considerations and factors set-out by a Single Judge of this court in Pooja Gupta & Anr VS Nil 2003 SCC OnLine Del 1197.

court would also go a step further, to say that waiving the period of 01-year would not, in and of itself, disentitle the court from also waiving the 06-month period prescribed under section 13B(2) of the HMA. In fact waiver of the 01-year period under section 13B(1) and waiver of the 06-month period under 13B(2), must be treated as two separate and distinct aspects; but waiver of one timeline would not preclude waiver of the other.

Therefore, the view that the timeline stipulated in section 13B(1) of the HMA is immutable (unchangeable), would render the opening words of section 13B of the HMA–viz., that the section is subject to the other provisions of the statute – nugatory (Of no value).

Court is of the view that once the court is satisfied that parties have made-out a case on the touchstone of what we have observed above; and the court decides to entertain the first motion before expiry of the 01-year separation period; and the parties have also made-out a case for waiver of the 06- month cooling-off period for presenting the second motion; and the court is also convinced that divorce should be granted on mutual consent, we see no justification whatsoever for the court to withhold the passing of the divorce decree till the 01-year separation period is completed.

That the Legislature has used word ‘MAY’ in the proviso of section 14 HMA. Legislature has not mandated that if a court has decided to grant a divorce decree, it ‘MUST’ hold that the decree shall not have effect until after expiry of a period of 01 year from the date of marriage.

CONCLUSION….

Court agreed with the view taken by the Division Bench of this court in Sankalp Singh, insofar as it holds that a petition under section 13B(1) of the HMA can be entertained even before parties have lived separately for a period of 01-year.

However, we differ from the view taken in Sankalp Singh when the Division Bench says that in order to satisfy the pre-requisite under section 13B(1) of the HMA, if the first motion is entertained and allowed before the parties have lived separately for at least 01-year, the second motion must only be allowed and a divorce decree can only be granted after the period of 01-year of separation is complete. It must be understood that at the time Sankalp Singh was pronounced, viz., in 2013, it was impermissible to waive even the 06-month period under section 13B(2); and the law that the 06-month period could be waived came by way of the Supreme Court ruling in Amardeep Singh only in 2017.

In Sankalp Singh, it was in these circumstances that the Division Bench held that though the proviso to section 14(1) applies even to petitions under section 13B, the first motion may be entertained and allowed; but the second motion can only be allowed and a decree of divorce granted after the 01-year of separation period under section 13B(1) has elapsed. Considering the manner in which the law has progressed since 2013 however, we disagree with the view taken in Sankalp Singh on that aspect; and we hold that the second motion may be entertained and allowed and a divorce decree may also be granted even before parties have lived separately for a period of less that 01-year subject to:

1. the court being satisfied that the circumstances envisaged in the proviso to section 14(1) of the HMA viz., of exceptional hardship or exceptional depravity, exist.
2. the court also testing the case on the anvil of the indicative considerations set-out in Pooja Gupta. The contrary view taken in Sankalp Singh, is, to that extent, setaside.

As narrated above, the rational for the Division Bench IN SANKALP SINGH holding that the second motion can be presented but the ―decree of divorce would only be granted once the period of one (1) year has elapsed from the separation‖ 30 was to fulfil the pre-requisite set-out in section 13B(1) of the HMA. However, we are of the view that once the court is satisfied that parties have made-out a case on the touchstone of what we have observed above; and the court decides to entertain the first motion before expiry of the 01-year separation period; and the parties have also made-out a case for waiver of the 06- month cooling-off period for presenting the second motion; and the court is also convinced that divorce should be granted on mutual consent, we see no justification whatsoever for the court to withhold the passing of the divorce decree till the 01-year separation period is completed.

Ratio Decidendi –

• The statutory period of 01-year prescribed under section 13B(1) of the HMA as a pre-requisite for presenting the first motion, can be waived, by applying the proviso to section 14(1) of the HMA
• The waiver of the 01-year separation period under section 13B(1) of the HMA does not preclude waiver of the 06-month cooling-off period for filing the second motion under section 13B(2). waiver of the 01-year period under section 13B(1), and the 06-month period under section 13B(2), are to be considered independently of each other.
• Where the court is satisfied that the 01-year period under section 13B(1) and the 06-month period under section 13B(2) of the HMA deserve to be waived, the court is not legally mandated to defer the date from which the divorce decree would take effect, and such decree may be made effective forthwith
• Where the court is satisfied that the 01-year period under section 13B(1) and the 06-month period under section 13B(2) of the HMA deserve to be waived, the court is not legally mandated to defer the date from which the divorce decree would take effect, and such decree may be made effective forthwith.
• Leave to Waive mandated time period under 13B(1) & 13 B (2), can be granted both by the Family Court as well as the High Court.