In a significant judgment altering the landscape of matrimonial litigation, a Full Bench of the Delhi High Court has ruled that the statutory requirement of a one-year separation period before filing a mutual consent divorce petition under Section 13B(1) of the Hindu Marriage Act, 1955 (HMA) can be waived in cases of exceptional hardship or exceptional depravity.
The Bench further held that once the court waives the one-year separation period and the six-month cooling-off period, it is not legally mandated to defer the divorce decree until the one-year period elapses. The decree can be made effective forthwith.
The judgment was delivered by a Full Bench comprising Justice Navin Chawla, Justice Anup Jairam Bhambhani, and Justice Renu Bhatnagar in a reference arising out of MAT.APP.(F.C.) 111/2025. The reference was made to the Full Bench to settle the legal position regarding the mandatory nature of the timelines prescribed under Section 13B of the HMA, specifically in light of the earlier Division Bench decision in Sankalp Singh vs. Prarthana Chandra (2013).
The reference arose from a judgment dated April 22, 2025, where a Division Bench observed that the interpretation adopted in Sankalp Singh might warrant reconsideration. Two specific questions of law were referred to the Full Bench:
- Whether a petition under Section 13B(1) of the HMA can be filed by parties before completing the one-year separation period?
- If yes, can the six-month period between the First and Second Motion (Section 13B(2)) be waived even if parties have not lived separately for more than one year on the date of the waiver prayer?
Analysis of Legal Provisions
The Court analyzed Section 13B(1), which allows divorce by mutual consent on the ground that parties have been living separately for a period of one year or more. The Bench noted that the section begins with the phrase “Subject to the provisions of this Act,” implying that it is subordinate to other provisions, including Section 14.
Section 14(1) generally prohibits courts from entertaining a divorce petition within one year of marriage but contains a proviso allowing the court to grant leave to present a petition earlier in cases of “exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.”
Overruling Previous Judgments
The Full Bench observed that previous Single Bench decisions of the Delhi High Court (Urvashi Sibal, Mohin Saili, and Sunny) had held that Section 13B is a complete code and the proviso to Section 14(1) does not apply to it. The Full Bench overruled these judgments, stating:
“We hold, that in light of the decision of the Division Bench of this court in Sankalp Singh, section 13B of the HMA is not a complete code; and the judgments of the various Single Benches of this court, taking the contrary view are hereby overruled.”
Waiver of Statutory Timelines Justice Bhambhani, authoring the judgment, emphasized that compelling consenting adults to remain in a broken marriage infringes upon their fundamental rights. The Court stated:
“Is a court mandated to stall divorce by mutual consent, thrusting unwilling parties not into marital bliss, but into a matrimonial abyss?”
1. Waiver of One-Year Separation Period
The Court affirmed the view in Sankalp Singh that the one-year period under Section 13B(1) can be waived by invoking the proviso to Section 14(1). This waiver is discretionary and subject to the court being satisfied regarding exceptional hardship or depravity.
2. Immediate Divorce Decree
The Full Bench, however, disagreed with the view taken in Sankalp Singh that required the divorce decree to be deferred until the one-year period elapsed. The Court reasoned that keeping unwilling persons tied in matrimony after finding exceptional circumstances exists would be a “conflicted position.”
“We differ from the view taken in Sankalp Singh… we hold that the second motion may be entertained and allowed and a divorce decree may also be granted even before parties have lived separately for a period of less that 01-year.”
The Bench clarified that if the court is convinced that divorce should be granted, “we see no justification whatsoever for the court to withhold the passing of the divorce decree till the 01-year separation period is completed.”
3. Independent Waivers
The judgment clarified that the waiver of the one-year separation period (Section 13B(1)) and the six-month cooling-off period (Section 13B(2)) are separate aspects. Waiving one does not preclude waiving the other.
Key Conclusions
The Full Bench summarized its conclusions as follows:
- The statutory period of one year under Section 13B(1) is a pre-requisite but can be waived by applying the proviso to Section 14(1).
- Waiver is not to be granted for the asking but upon satisfaction of “exceptional hardship” or “exceptional depravity.”
- The waiver of the one-year period does not preclude the waiver of the six-month cooling-off period under Section 13B(2).
- Courts are not legally mandated to defer the effect of the divorce decree; it may be made effective forthwith.
- Such waiver powers can be exercised by both the Family Court and the High Court.
Senior Advocate Mr. Rajshekhar Rao appeared as Amicus Curiae, assisted by Advocates Ms. Aashna Chawla, Mr. Ajay Sabharwal, Mr. Wamic Wasim Nargal, and Mr. Zahid Laiq Ahmed. Mr. Saurabh Kansal appeared for the Respondent.
