The condition prescribed under Section 13B(1) of the Hindu Marriage Act is directory and not mandatory, the Court said.
In a ruling with far-reaching implications for divorce law, the Delhi High Court held that the requirement of spouses “living separately for one year” before filing a mutual consent divorce petition is not mandatory and may be waived by the Family Court or the High Court in appropriate cases.
A Full Bench comprising Justices Navin Chawla, Anup Jairam Bhambhani and Renu Bhatnagar ruled that the condition under Section 13B(1) of the Hindu Marriage Act, 1955 is directory rather than mandatory.
The Bench further explained that since Section 13B(1) opens with the words “subject to the provisions of this Act,” it must be construed in consonance with the proviso to Section 14(1) of the HMA.
That proviso empowers courts to relax statutory waiting periods in cases of “exceptional hardship” or “exceptional depravity.”
The Court added that there is no legal basis to deny such discretionary relief in mutual consent divorce matters when similar flexibility is available 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 waiving the one-year separation requirement under Section 13B(1) of the HMA does not automatically entail, nor does it bar, a waiver of the six-month cooling-off period stipulated for 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) function independently and must be considered on their own merits.
“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 should not be granted as a matter of routine and may be allowed only when the court is satisfied that the case involves “exceptional hardship” to the petitioner and/or “exceptional depravity” on the part of the respondent.
These observations were made while answering a reference triggered by conflicting judicial views on whether parties must complete one year of separation before approaching the court for a divorce by mutual consent.
While reaffirming and partly modifying its earlier ruling 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 before the expiry of one year of separation.
In arriving at this conclusion, the three-judge Bench overruled earlier decisions that had treated Section 13B as a “complete code” and had construed the one-year separation requirement as mandatory and incapable of waiver.
The Court clarified that such a rigid interpretation does not align with the progressive evolution of matrimonial law and unjustifiably restricts individual autonomy.
The Bench underscored that the essence of Section 13B lies in the free and informed consent of both spouses, rather than in strict adherence to procedural timelines. It added that compelling unwilling parties to remain legally bound in an irretrievably broken marriage could amount to an unwarranted intrusion into personal liberty and dignity guaranteed under Article 21 of the Constitution.
In conclusion, the Court placed on record 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.
