One Year Separation Period For Presenting First Motion For Divorce By Mutual Consent Not Mandatory: Delhi High Court

The Delhi High Court has ruled that the one year separation period required as a pre-requisite for presenting the first motion for divorce by mutual consent under Section 13B(1) of the Hindu Marriage Act is not mandatory and can be waived.A full bench comprising Justice Navin Chawla, Justice Anup Jairam Bhambhani and Justice Renu Bhatnagar said that the period can be waived by applying the proviso to section 14(1) of the enactment. The Court held that the waiver of one year separation period does not preclude waiver of the six month cooling-off period for filing the second motion for divorce under Section 13B(2). It said that the waiver of the one year period and the six month period 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,” the Court said. It ruled that such waiver is not to be granted merely for the asking but only upon the court being satisfied that circumstances of “exceptional hardship to the petitioner” and “exceptional depravity on the part of the respondent” exist.Further, it has been held that the waiver can be granted both by the Family Court as well as the High Court. “As contemplated in the proviso to section 14(1) of the HMA, where a court finds that the waiver of the 01-year period under section 13B(1) has been obtained by misrepresentation or concealment, the court may defer the date on which the divorce would take effect, as may be considered appropriate; or may dismiss the divorce petition, at whichever stage it is pending, without prejudice to the right of the parties to present a fresh petition under section 13B(1) of the HMA after expiration of the 01-year period, on the same or substantially the same facts as may have been pleaded in the petition so dismissed,” the Court said. The full bench answered the reference received by a division bench. The matter concerned the timeline prescribed for the presentation of petition for divorce by mutual consent. The Court held that the view taken earlier by the various Single Benches holding that section 13B of the HMA is a complete code in itself and that the proviso to section 14(1) of the HMA does not apply to petitions filed under section 13B is not the correct view.“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. This would of course be subject to the court satisfying itself inter-alia as regards the considerations set-out in Pooja Gupta, as referred-to hereinbefore,” the Court said.It added that when a petition for divorce is presented with consent of parties, who aver that they have been living separately for a period of one year or more, the only circumstance in which the period can be verified is if the marriage itself is of less than one year vintage. “In all other cases, the mere consensual assertion of the parties is sufficient to fulfil the requirements of section 13B(1) of the HMA and cannot be second- guessed. In a sense therefore, verification of the 01-year separation period in section 13B(1) is all but illusive,” the Court said. “Though there is no doubt that the sanctity, stability, and solemnity of the institution of marriage holds social and cultural significance in our society, however where the spouses are ad-idem that their marriage must be ended, efforts to save a broken marriage would give primacy to outward social pretense at the cost of autonomy and dignity of the affected couple,” the Court said.Title: X v. YCitation: 2025 LiveLaw (Del) 1729Click Here To Read Order

One Year Separation Period For Presenting First Motion For Divorce By Mutual Consent Not Mandatory: Delhi High Court

Nupur Thapliyal

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