6 Months Waiting Period in Mutual Divorce Waived Off: Supreme Court Judgement

What Is Mutual Divorce Under Indian Law?

Mutual consent divorce in India refers to a legal dissolution of marriage when both spouses agree that the marriage is beyond repair. It is filed under Section 13B of the Hindu Marriage Act, 1955 and involves a two-step process requiring mutual agreement and a short period of separation.

As per the mutual consent divorce procedure, couples must file a joint petition, followed by two motions filed at an interval of six months. This gap was historically known as the cooling-off period.

Essential aspects of mutual consent divorce:

• Mutual consent: Both spouses agree to end the marriage
• Mutual consent divorce format: A prescribed format and process is followed in family court
• Two motions: Filed with a 6-month waiting period in between

While this system aims to allow for reconciliation, critics point out several disadvantages of mutual consent divorce, such as delays, emotional toll, and legal complexity—even when both parties are ready to move on.

Procedure and Format of Mutual Consent Divorce in India

The process of mutual consent divorce under Section 13B of the Hindu Marriage Act, 1955, is relatively straightforward when both spouses agree that the marriage has broken down irretrievably and wish to separate legally. Here’s a step-by-step guide:

Step-by-Step Procedure:

1. Preparation of Petition: Both parties jointly draft a petition for mutual divorce under Section 13B(1), stating the grounds and mutual agreement to part ways.
2. First Motion Filing: The joint petition is filed before the Family Court along with affidavits from both parties and required documents (listed below).
3. Appearance Before the Court: Both spouses must appear in court for the first motion hearing, where the judge records their statements.
4. Cooling-Off Period: Originally a 6-month waiting period was mandatory before the second motion. However, this can now be waived off by the court based on specific circumstances (see Waiver section above).
5. Second Motion Filing: After the cooling-off period or waiver, the second motion is filed under Section 13B(2). Both parties re-affirm their consent.
6. Final Decree of Divorce: Upon satisfaction, the Family Court grants the divorce decree, legally dissolving the marriage.

Documents Required:

• Address proof of both parties
• Marriage certificate (if available)
• Joint passport-size photographs
• Proof of last 1-year separation (if any)
• Details of mutually agreed terms for alimony, child custody, maintenance, etc.
• Income tax returns and ID proofs

Sample Format of Mutual Divorce Petition:

Here’s a basic structure of how a mutual consent divorce petition is framed:

IN THE FAMILY COURT AT [City]

Petition No. ___ of 20__

IN THE MATTER OF:

[Husband’s Full Name], aged about __ years, residing at [Address] ...PETITIONER NO. 1

AND

[Wife’s Full Name], aged about __ years, residing at [Address] ...PETITIONER NO. 2

JOINT PETITION UNDER SECTION 13B OF THE HINDU MARRIAGE ACT, 1955

MOST RESPECTFULLY SHOWETH:

1. That the marriage between the Petitioners was solemnized on [Date] at [Place] as per Hindu rites and customs.
2. That due to incompatibility and irreconcilable differences, they have been living separately since [Date].
3. That all efforts for reconciliation have failed, and they have mutually decided to dissolve the marriage.
4. That they have settled all matrimonial claims including maintenance, alimony, child custody, etc.
5. That this petition is being filed jointly under Section 13B(1) for dissolution of marriage by mutual consent.

PRAYER

It is therefore prayed that this Hon’ble Court may be pleased to:
a) Accept the present petition;
b) Record statements of both the Petitioners;
c) Pass a decree of divorce under Section 13B of the Act.

Filed by:
[Signatures of Both Petitioners]
[Advocate’s signature and details]
  

Note: It is advisable to consult a professional divorce lawyer to draft the final petition accurately, as legal nuances vary case by case.

The 6 Months Waiting Period Explained

The law mandates a 6 months waiting period in mutual divorce before a final decree can be passed. This applies after the first motion is filed and is designed to give couples a chance to reconsider their decision.

However, this cooling-off period often serves no real benefit in cases where separation is inevitable. This is where the concept of 6 months waiver in mutual divorce becomes relevant. Courts observed that forcing such couples to wait only prolongs their suffering and clogs the judicial system.

Common criticisms include:

• Emotional and financial strain: Especially on women or primary caregivers
• No scope for reconciliation: In many cases, the couple has already been separated for over a year
• Procedure-only filings: The second motion is just a formality in most cases

In response to these concerns, the Supreme Court judgement on waiver of cooling period divorce has made a massive impact, offering a more flexible and practical solution for willing parties.

Supreme Court Judgement Waiving the 6-Month Cooling-Off Period

The latest Supreme Court judgement on divorce by mutual consent in the Amardeep Singh v. Harveen Kaur (2017) case made a landmark observation — that the 6 months waiting period in mutual divorce can be waived off under specific circumstances. This marked a shift toward a more practical and empathetic approach to separation.

According to the ruling, the 6-month period under Section 13B(2) of the Hindu Marriage Act is not compulsory. It is directory, meaning there is no waiting in mutual consent divorce when the couple meets certain eligibility conditions. This flexibility offers immense relief for couples who’ve already been separated and resolved their disputes.

Key Highlights of the Judgement

• Applies when spouses have already been separated for over one year
• No possibility of reconciliation or reunion
• All matters (alimony, property, child custody) are resolved
• Court has discretion to waive the wait time
• A waiver can be filed using the correct mutual consent divorce application format

For reference, you can download the official mutual consent divorce judgement PDF from the Supreme Court website. Lawyers now routinely cite this case when helping clients skip the delay in uncontested divorces.

How the Supreme Court Judgement Affects Couples Seeking Mutual Divorce

The landmark ruling by the Hon’ble Supreme Court in the case of Amardeep Singh v. Harveen Kaur (2017) has empowered Indian couples to obtain a quicker resolution through mutual divorce. This judgment has brought immense relief to countless individuals stuck in broken marriages where reconciliation is not a possibility. Let’s explore how this judgement reshapes the divorce process under Indian law.

1. Discretion of the Court

The ruling clarified that the six-month waiting period under Section 13B(2) of the Hindu Marriage Act is not mandatory but directory. This means the court can waive off the period if it is satisfied that the marriage has irretrievably broken down and both parties have genuinely settled all differences, including matters related to alimony, custody of children, and division of property.

2. Faster Resolution

Couples now have the legal backing to approach the family court for waiver of the cooling-off period, enabling them to end the marriage quickly and move on with their lives. This has reduced mental and emotional stress, especially in cases where both spouses are firm on parting ways amicably.

3. Empowerment of Women

This judgment especially helps women trapped in toxic or abusive marriages who may want a swift and dignified exit. By skipping the unnecessary delay, it protects their right to mental peace, security, and a fresh start.

4. Uniformity Across Courts

Earlier, different courts had different interpretations of whether the six-month period was mandatory. Post this judgment, there’s legal clarity and consistency across India. All family courts now have the authority to waive the period when the statutory conditions are fulfilled.

Eligibility Criteria to Waive Off the Six-Month Waiting Period

To benefit from the waiver of the 6-month waiting period, the couple must meet certain essential criteria laid down by the Supreme Court. Here’s what the court generally considers:

• Cooling-off Period Already Met: The couple has lived separately for at least one year before filing the first motion under mutual consent divorce.
• Efforts at Reconciliation Failed: The court must be satisfied that there has been no chance of reconciliation between the spouses, despite mediation or counseling.
• Genuine Consent: Both parties must mutually agree to divorce with free will, without coercion or undue influence.
• All Issues Settled: Important aspects like maintenance, alimony, custody, visitation rights, and property division should be mutually agreed upon and documented.

Only when these conditions are fulfilled can a party request the family court to waive the cooling-off period. The decision ultimately lies with the presiding judge who examines the sincerity of the couple’s intent and the facts of the case.

Key Legal Precedents Supporting Waiver of Cooling-Off Period

Over the years, several judgments have strengthened the position that the 6-month period is not an absolute requirement. Some important cases include:

• Amardeep Singh v. Harveen Kaur (2017) – Laid down the principle that the six-month period under Section 13B(2) is not mandatory and can be waived.
• Sureshta Devi v. Om Prakash (1991) – Defined the concept of mutual consent and underlined the voluntary nature of such divorces.
• Hitesh Bhatnagar v. Deepa Bhatnagar (2011) – Held that even if one party withdraws consent before the second motion, divorce cannot be granted.

These judgments collectively ensure that justice is not delayed unnecessarily when a marriage is genuinely over and both parties wish to part ways peacefully.

Relevant Supreme Court Judgements and Citations

One of the landmark rulings on waiving the 6-month waiting period was delivered in the case of Amardeep Singh vs Harveen Kaur (2017) 8 SCC 746. In this judgement, the Hon’ble Supreme Court of India laid the foundation for courts to use discretionary powers under Article 142 of the Constitution to waive the cooling-off period. The court observed:

“The object of the cooling off period is to safeguard against a hurried decision of divorce. However, where the parties have genuinely settled their differences including alimony, custody, and are living separately for over 1.5 years, there is no purpose served by further delay.”

Later, in Amrita Roy vs. Ashok Roy and several other High Court cases, this discretion was upheld and clarified, paving the way for quick disposal of mutual consent divorce petitions.

For legal reference, you can view the judgement directly from the Supreme Court Website.

Impact of the Judgement on Indian Divorce Law

The judgment has brought a major shift in how mutual divorces are viewed and processed in India. Some of the key impacts include:

• Expedited Justice: Couples no longer need to go through additional mental agony if the relationship is irreparable.
• Judicial Efficiency: Courts can handle uncontested divorce cases more quickly, reducing pendency.
• Consistency in Application: The judgment provides a clear legal standard that can be followed across India.
• Greater Autonomy: Recognises the autonomy and maturity of adults in making decisions about their marital life.

How to Apply for a Waiver of the 6-Month Waiting Period

If you and your spouse have already been separated for over 1 year and have settled all issues such as maintenance, child custody, and property, you may file an application under Section 13B(2) along with a waiver request. Here’s how:

1. File the First Motion petition under Section 13B(1) of the Hindu Marriage Act.
2. Wait for the mandatory separation period (usually already completed).
3. Submit a waiver application citing mutual settlement, irretrievable breakdown, and reference to Amardeep Singh judgement.
4. The court may conduct an enquiry and, if satisfied, pass the decree of divorce immediately.

It is strongly recommended to consult an experienced divorce lawyer to draft the waiver petition appropriately.

Conclusion

The Supreme Court’s recognition that every marriage cannot be salvaged, and the process of ending it shouldn’t add further trauma, marks a progressive shift in Indian matrimonial law. The power to waive the 6-month cooling-off period in mutual divorce cases aligns legal practice with the realities of modern relationships.

For couples stuck in an irretrievable marriage, this ruling offers a humane, time-sensitive, and legally sound way to start afresh. If you’re facing such a situation, speak with a legal expert to understand how you can leverage this judgment in your favour.

Explore Our Related Legal Blogs

If you found this blog helpful, you may also want to read:

• Divorce Lawyer in India: All You Need to Know
• Legal Separation vs. Divorce in India
• How Alimony and Marital Support is Calculated in India