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 proceedings, the Delhi High Court has held that the statutory requirement of “living separately for one year” prior to 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 stipulated under Section 13B(1) of the Hindu Marriage Act, 1955 is directory rather than mandatory.
The Bench further held that Section 13B(1), which opens with the words “subject to the provisions of this Act”, must be interpreted harmoniously with the proviso to Section 14(1) of the HMA.
The proviso empowers courts to dispense with statutory waiting periods in situations involving “exceptional hardship” or “exceptional depravity”.
The Court observed that there is no legal basis to withhold such discretion in cases of divorce by mutual consent when the same 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 bar or mandate waiver of the six-month cooling-off period 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) are distinct and must be considered independently of one another.
“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 course, but only where 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 stemming from conflicting judicial views on whether parties are required to complete one year of separation before approaching the court for divorce by mutual consent.
Reaffirming, and to an extent modifying, its earlier ruling in Sankalp Singh v. Prarthana Chandra, the High Court held that Family Courts and High Courts possess the discretion to entertain a first motion for divorce even before the completion of one year of separation.
In arriving at this conclusion, the three-judge Bench overruled earlier decisions that had construed Section 13B as a “complete code” and treated the one-year separation requirement as mandatory and non-waivable.
The Court clarified that such a rigid interpretation fails to account for the evolution of matrimonial jurisprudence and erodes individual autonomy.
The Bench underscored that the essence of Section 13B lies in the free and informed consent of both spouses, rather than in a rigid adherence to prescribed 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, who assisted the Court as amicus curiae, as well as advocates Aashna Chawla, Ajay Sabharwal, Wamic Wasim Nargal and Zahid Laiq Ahmed for their valuable assistance.