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Can waive 1-year separation norm in mutual consent divorce, says HC
The Delhi high court allows waiving the one-year separation period for mutual divorce under the Hindu Marriage Act in cases of exceptional hardship.
The Delhi high court on Wednesday ruled that family courts or the high court can waive the mandatory one-year separation period for divorce by mutual consent under the Hindu Marriage Act (HMA) and dissolve the union where the marriage causes exceptional hardship or exceptional deprivation to either spouse.
A full bench of justices Navin Chawla, Anup Jairam Bhambhani and Renu Bhatnagar ruled that the mandatory period under section 13B of HMA can be waived to save a couple from remaining trapped in a manifestly unworkable matrimonial relationship.
“It is clarified that the one-year period stipulated under section 13(1) B 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 one year of separation period,” the court ruled.
To be sure, under Section 13B, spouses may jointly seek divorce by mutual consent if they have lived separately for at least one year, are unable to live together, and agree to dissolve the marriage. The process involves two stages: a first motion, where a joint petition is filed outlining consent and terms on alimony, custody, and property; and a second motion after six months, when consent is reaffirmed, and the court may grant a divorce decree.
The proviso to Section 14(1) of the HMA allows the court to permit the filing of a divorce petition before completion of one year of marriage if it is satisfied that the case involves exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.
The court added in its ruling: “Accordingly in our opinion, 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.”
The full bench took up the issue after a division bench, in its April 2025 ruling, requested the Chief Justice to constitute a larger bench to decide whether a couple can seek divorce by mutual consent before completing one year of separation.
The division bench had referred the matter to the larger bench after it found that a coordinate bench’s 2013 ruling required reconsideration. In 2013, the coordinate bench ruled that although a petition for divorce by mutual consent can be filed before the completion of one year of separation between the couple, a divorce decree cannot be granted without the completion of the mandatory one-year period of separation.
