One-year separation under Section 13B of HMA not mandatory for divorce by mutual consent: Delhi High Court

In a judgment of significant impact on divorce proceedings, the Delhi High Court has held that the statutory requirement of “living separately for a period of one year” before filing for divorce on mutual consent is not mandatory and can be waived in by the family court and the High Court in appropriate cases. .A Full Bench of 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 held that Section 13B(1), which begins with the phrase “subject to the provisions of this Act”, must be read harmoniously with the proviso to Section 14(1) of the HMA. The proviso allows courts to waive statutory waiting periods in cases involving “exceptional hardship” or “exceptional depravity”. According to the Court, there is no legal justification to deny such flexibility in mutual consent divorces when it is available even in contested cases.“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. .It further said that the waiver of the one year separation period under Section 13B(1) of the HMA does not preclude waiver of the six-month cooling-off period for filing the second motion under Section 13B(2) and and waiver of the one year under Section 13B(1), and the six-month period under Section 13B(2), 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 Bench said. .However, the Court cautioned 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/or “exceptional depravity on the part of the respondent”. .The Court rendered these findings while answering a reference arising from conflicting interpretations of whether parties must complete one year of separation before approaching the court for mutual consent divorce.Reaffirming and partly modifying its earlier decision in Sankalp Singh v Prarthana Chandra, the High Court ruled that family courts and High Courts have the discretion to entertain a first motion for divorce even before the completion of one year of separation.While giving its findings, the three-judge bench overruled earlier decisions that had treated Section 13B as a “complete code” and insisted that the one-year separation requirement was mandatory and incapable of waiver. It clarified that such an approach ignores evolving matrimonial jurisprudence and undermines individual autonomy.The Bench emphasised that the core requirement of Section 13B is the free and informed consent of both parties, not rigid adherence to timelines. Forcing unwilling spouses to remain legally bound in a broken marriage could amount to an unjustified intrusion into personal liberty and dignity under Article 21 of the Constitution, the Court added. .While parting with the judgement, the Court recorded its gratitude to Senior Advocate Rajsekhar Rao who acted as amicus curiae in the matter and advocates Aashna Chawla, Ajay Sabharwal, Wamic Wasim Nargal and Zahid Laiq Ahmed who assisted him. Advocates Saurabh Kansal, Raghav Vij, Suraj Kumar, Ritul Sharma and Pratham Malik appeared for the husband. .[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.