Consent, Not Calendar, Governs Divorce by Mutual Consent: Delhi High Court Says Separation and Cooling-Off Periods Under Hindu Marriage Act Can Be Waived

“Thrusting unwilling parties—not into marital bliss, but into a matrimonial abyss—serves neither law nor justice”, In a landmark ruling Full Bench of the Delhi High Court has settled a long-standing legal debate on the interpretation of timelines under Section 13B of the Hindu Marriage Act, 1955. The Court held that the statutory one-year separation period before filing a divorce petition by mutual consent under Section 13B(1), as well as the six-month cooling-off period under Section 13B(2), are not absolute mandates. These timelines, the Court said, are “procedural and directory”, and may be waived by courts in exceptional cases to preserve the dignity, autonomy, and psychological well-being of parties trapped in irretrievably broken marriages.

The three-judge bench comprising Justice Anup Jairam Bhambhani, Justice Navin Chawla, and Justice Renu Bhatnagar answered two critical questions of law referred to it by a Division Bench earlier this year. The reference arose from conflicting decisions—particularly the one in Sankalp Singh v. Prarthana Chandra—which had previously held that a divorce decree could only be granted after the one-year separation period was over, even if the first motion was entertained earlier.

“Consent is the cornerstone, not the calendar”: Court affirms that judicial discretion can override timelines to prevent prolonged matrimonial agony

The Court firmly held that where parties demonstrate “exceptional hardship” or “exceptional depravity” under the proviso to Section 14(1) of the Act, the statutory bar of one-year separation under Section 13B(1) can be waived, and the first motion petition may be entertained before the expiry of that period. Referring to the guiding principles laid down in Pooja Gupta v. Nil, the Court ruled that “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), and in appropriate cases, it may be invoked to save parties from remaining trapped in a manifestly unworkable matrimonial relationship.”

The Court rejected the earlier view that Section 13B is a “complete code” immune from the overriding effect of Section 14, and clarified that the opening words “subject to the provisions of this Act” in Section 13B make it subordinate to Section 14. “It must be understood,” the Bench said, “that the legislature did not intend for couples to be locked into painful unions merely due to arbitrary timelines.”

“Once the Court is satisfied that divorce is the only path forward, it need not keep two unwilling persons tied in matrimony”

Addressing the second key issue—whether the six-month cooling-off period under Section 13B(2) can also be waived even when the one-year separation period under Section 13B(1) is waived—the Full Bench answered in the affirmative. Drawing from the Supreme Court’s rulings in Amardeep Singh v. Harveen Kaur and Amit Kumar v. Suman Beniwal, the High Court ruled that the two periods—of one year and six months—are distinct and waivable independently. “Waiver of the one-year period under Section 13B(1) does not preclude waiver of the six-month period under Section 13B(2), and both can be waived provided the judicial conscience is satisfied,” the Bench held.

The Court went further and overruled the restrictive interpretation adopted in Sankalp Singh, which had held that even if the first motion was allowed before the one-year separation, the second motion and decree could only be granted after the one-year was completed. Terming such an approach as unnecessarily rigid and outdated, the Court observed, “Law must not lag behind lived realities. Matrimonial law cannot be used to enforce social pretence at the cost of individual autonomy.”

“Where parties are ad idem, the Court must not prolong their agony in the name of reconciliation”

In its detailed 122-page judgment, the Full Bench underlined that “the essential ingredient of Section 13B is not the duration of separation, but the voluntary and informed consent of the parties to dissolve the marriage.” Where the court is satisfied that the consent is free and considered, and that the relationship has irretrievably broken down, it has the discretion to waive both the separation and cooling-off periods.

The Court also clarified that in cases where the timelines are waived, “there is no legal mandate requiring the court to defer the effective date of the decree.” The statutory text, it noted, only permits such deferral in cases of “misrepresentation or concealment.” The Court emphatically stated, “Where the waiver is granted upon judicial satisfaction and without concealment, the decree of divorce may be made effective forthwith.”

“A marriage must be the product of free will; its dissolution should not be obstructed by artificial procedural constraints”

The Full Bench addressed the emotive arguments often raised in defence of fixed waiting periods. “While the sanctity and solemnity of marriage are unquestioned,” the Court noted, “forcing parties to remain in a dead marriage is not a celebration of sanctity—it is a denial of dignity.” It added that “prolonging such a bond may irreparably harm the prospects of remarriage, mental well-being, and social reintegration of both parties.”

Importantly, the Court emphasized that its discretion under Section 14(1)’s proviso must be exercised with caution and only after satisfying itself on criteria such as absence of coercion, maturity of the spouses, genuine settlement, and lack of frivolity—as articulated in Pooja Gupta. But where these are satisfied, the Court has the full power to grant relief.

“Consent is the legal cornerstone. Timelines are mere tools of caution, not shackles of compulsion”

Summing up its conclusions, the Court declared that “forcing parties to perform marital obligations when they have irreversibly decided not to, infringes upon their rights under Article 21 of the Constitution.” The Full Bench firmly stated that law must not obstruct a clean break where the marriage is already dead in fact.

In an era where personal liberty and decisional autonomy are increasingly central to constitutional interpretation, this decision marks a progressive and practical shift in the law of divorce by mutual consent.

The reference was accordingly answered, with the Court affirming that both the Family Court and the High Court have the power to:

1. Waive the one-year separation requirement under Section 13B(1) by applying the proviso to Section 14(1),

2. Independently waive the six-month cooling-off period under Section 13B(2),

3. Grant the decree of divorce effective immediately without waiting for the one-year period to expire, if the circumstances warrant it.

As the Court poignantly concluded: “A purposeless marriage need not be perpetuated by procedural rigidity. When the law allows the beginning of marriage by choice, it must allow its end by consent.”

Date of Decision: 17 December 2025