The condition prescribed under Section 13B(1) of the Hindu Marriage Act is directory and not mandatory, the Court said.
In a decision with significant consequences for divorce jurisprudence, the Delhi High Court has ruled that the requirement of “living separately for one year” before filing a petition for divorce by mutual consent is not compulsory and can be waived by the Family Court or the High Court in suitable cases.
A Full Bench comprising Justices Navin Chawla, Anup Jairam Bhambhani and Renu Bhatnagar held that the condition prescribed under Section 13B(1) of the Hindu Marriage Act, 1955 is directory and not mandatory.
The Bench further observed that since Section 13B(1) begins with the phrase “subject to the provisions of this Act”, it must be read in harmony with the proviso to Section 14(1) of the HMA.
The proviso authorises courts to waive the prescribed statutory waiting periods in cases involving “exceptional hardship” or “exceptional depravity.”
The Court noted that there is no legal justification for denying such discretionary relief in mutual consent divorce cases when comparable flexibility is recognised in contested divorce proceedings.
“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 Court ruled.
The Court further clarified that dispensing with the one-year separation requirement under Section 13B(1) of the HMA does not by itself require, or preclude, a waiver of the six-month cooling-off period prescribed for filing the second motion under Section 13B(2).
It held that the waiver of the one-year period under Section 13B(1) and the six-month period under Section 13B(2) operate independently and must be examined separately.
“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 Bench said.
However, the Court cautioned that such waivers must not be granted routinely and should be allowed only where the court is satisfied that the case discloses “exceptional hardship” to the petitioner and/or “exceptional depravity” on the part of the respondent.
These observations were made while answering a reference arising from divergent judicial opinions on whether parties must complete one year of separation before approaching the court for divorce by mutual consent.
Reaffirming, and partly modifying, its earlier decision in Sankalp Singh v. Prarthana Chandra, the High Court held that Family Courts and High Courts have the discretion to entertain a first motion for divorce even prior to the completion of one year of separation.
In reaching this conclusion, the three-judge Bench overruled earlier rulings that had treated Section 13B as a “complete code” and regarded the one-year separation requirement as mandatory and incapable of waiver.
The Court clarified that such a rigid construction fails to reflect the progressive development of matrimonial law and unduly curtails individual autonomy.
The Bench emphasised that the heart of Section 13B is the free and informed consent of both spouses, not strict compliance with procedural timelines. It added that forcing unwilling parties to remain legally tied in an irretrievably broken marriage may amount to an unjustified intrusion into personal liberty and dignity protected under Article 21 of the Constitution.
In closing, the Court recorded its appreciation for Senior Advocate Rajsekhar Rao for his assistance as amicus curiae, and for advocates Aashna Chawla, Ajay Sabharwal, Wamic Wasim Nargal and Zahid Laiq Ahmed for their valuable assistance.