The Delhi High Court has ruled that the one-year separation requirement under Section 13B of the Hindu Marriage Act is not mandatory. Courts may waive this condition in exceptional cases to prevent undue hardship to parties.
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NEW DELHI: In a landmark judgment with far-reaching implications for matrimonial law, the Delhi High Court has held that the statutory requirement of “living separately for one year” before filing for divorce by mutual consent under the Hindu Marriage Act, 1955 (HMA) is directory and not mandatory, and can be waived in appropriate cases.
A Full Bench comprising Justices Navin Chawla, Anup Jairam Bhambhani, and Renu Bhatnagar ruled that courts have the discretion to waive this requirement when circumstances disclose “exceptional hardship” or “exceptional depravity,” thereby offering relief to parties trapped in irretrievably broken marriages.
The Court held that Section 13B(1) of the HMA, which prescribes a one-year separation period before filing the first motion for mutual consent divorce, is not an inflexible mandate.
Importantly, the Bench observed that Section 13B(1) begins with the phrase “subject to the provisions of this Act”, and therefore must be read harmoniously with the proviso to Section 14(1) of the HMA.
The proviso to Section 14(1) empowers courts to waive statutory waiting periods in cases involving exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.
“The statutory period of one year prescribed under Section 13B(1) of the HMA can be waived by applying the proviso to Section 14(1),”
the Court held.
The Delhi High Court further clarified that:
- Waiver of the one-year separation period under Section 13B(1) does not automatically imply waiver of the six-month cooling-off period under Section 13B(2).
- Both time periods must be considered independently, based on the facts of each case.
- Where the court is satisfied that both periods deserve waiver, it is not legally required to defer the effectiveness of the divorce decree.
“Such decree may be made effective forthwith,”
the Bench observed.
Rejecting earlier rulings that treated Section 13B as a “complete code,” the Full Bench overruled decisions which insisted that the one-year separation requirement was mandatory and incapable of waiver.
According to the Court, such an approach:
- Ignores evolving matrimonial jurisprudence
- Undermines individual autonomy
- Forces unwilling spouses to remain in legally dead marriages
The Bench emphasised that the core requirement of mutual consent divorce is free and informed consent, not mechanical adherence to timelines.
The Court underscored that compelling parties to remain married despite a complete marital breakdown could amount to an unjustified intrusion into personal liberty and dignity, protected under Article 21 of the Constitution of India.
Forcing unwilling spouses to remain legally bound in a broken marriage violates constitutional values of dignity and autonomy,
the Court noted.
Reaffirming and partly modifying its earlier ruling in Sankalp Singh v. Prarthana Chandra, the Delhi High Court ruled that:
- Family Courts and High Courts can entertain the first motion for mutual consent divorce even before the completion of one year of separation
- Waiver is not automatic and must be granted only upon judicial satisfaction of exceptional circumstances
The Court cautioned that waiver is not to be granted merely for the asking.
The Full Bench was constituted to resolve conflicting interpretations on whether the one-year separation period under Section 13B(1) is mandatory. The ruling settles the law by granting judicial flexibility while safeguarding against misuse.
Section 13 B of the Hindu Marriage Act, 1955
Under Hindu law, marriage is traditionally viewed as a sacred and lifelong union. However, the Hindu Marriage Act, 1955, introduced divorce as a legal remedy. Among the grounds for divorce, divorce by mutual consent was later incorporated to allow couples to dissolve their marriage amicably.
Divorce by Mutual Consent
Divorce by mutual consent is based on the no-fault principle, meaning neither spouse is required to prove wrongdoing by the other. This provision was introduced through Section 13B, inserted by the Marriage Laws (Amendment) Act, 1976, and has been in force since 25 May 1976.
Section 13B(1): First Motion
Under this provision:
- Both spouses must jointly file a petition before the District Court
- The marriage may have been solemnised before or after the 1976 amendment
- The parties must have been living separately for at least one year
- They must state that they are unable to live together and have mutually agreed to dissolve the marriage
Section 13B(2): Second Motion
- The second motion can be filed after six months and within eighteen months from the date of the first petition
- The petition should not have been withdrawn during this period
- The court, after hearing both parties and satisfying itself about the truth of the statements, may pass a decree of divorce, effective from the date of the decree
Purpose of the Procedure
The prescribed time periods are intended to provide spouses with an opportunity to reconsider and reconcile, recognising that marriage is a significant social and personal institution.
Appearance:
Appellant: Sr. Advocate Rajshekhar Rao (Amicus-Curiae) with Advocates Aashna Chawla, Ajay Sabharwal, Wamic Wasim Nargal and Zahid Laiq Ahmed
Respondent: Advocate Saurabh Kansal with Advocates Raghav Vij, Suraj Kumar, Ritul Sharma, and Pratham Malik
Case Title:
SHIKSHA KUMARI versus SANTOSH KUMAR
MAT.APP.(F.C.) 111/2025
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