Six-Month Cooling-Off Period For Mutual Divorce Is Not Mandatory: Gujarat High Court

The Gujarat High Court recently set aside an order of the family court at Ahmedabad rejecting a petition for divorce by mutual consent solely on the ground that the statutory cooling-off period had not been waived, holding that it is now well-settled that the six-month period enumerated in Section 13B of the Hindu Marriage Act, 1955, is directory and not mandatory.

The division bench comprising Justice Sangeeta K. Vishen and Justice Nisha M. Thakore was hearing a first appeal filed by a husband and wife whose joint plea under Section 13B of the Act of 1955 had been dismissed by the family court on August 8, 2025.

The marriage between the parties was solemnised on December 9, 2023. Within a little over a month, on January 17, 2024, they began living separately. While the wife chose to remain in Ahmedabad to pursue her career in India, the husband moved to the United Kingdom for higher studies and expressed his intention to settle there permanently. The divergence in their personal and professional goals, according to both parties, made it impossible for them to continue the marital relationship.

On April 1, 2025, after more than a year of separation, the parties jointly approached the family court seeking dissolution of marriage by mutual consent. Their examination-in-chief statements were placed on record, affirming that the decision to seek divorce was voluntary, free from coercion, and arrived at after settling all ancillary issues, including alimony. The wife also declared that she would not claim maintenance in the future.

The second motion under Section 13B was moved on July 24, 2025. However, before the expiry of the six-month cooling-off period, which was due to conclude on October 1, 2025, the family court rejected the petition. The trial court held that the cooling-off period was a meaningful statutory requirement and further noted that no separate application had been filed seeking waiver of the said period.

Challenging this decision, the parties argued before the high court that the family court had erred in law by dismissing the petition outright. They submitted that, at the very least, the court should have granted them an opportunity to file an application seeking waiver of the cooling-off period or adjourned the matter. The appellants also undertook that the husband would personally appear and file the necessary waiver application instead of acting through a power of attorney.

The division bench examined the scheme of Section 13B and referred to the judgments of the Supreme Court of India, particularly the 2017 judgment in Amardeep Singh v. Harveen Kaur, which held that the six-month cooling-off period is directory and not mandatory. The apex court had clarified that the waiting period could be waived where parties had already lived separately for the requisite duration, reconciliation efforts had failed, disputes had been settled, and further delay would only prolong their agony.

Applying these principles, the high court noted that the parties had been living separately for more than a year even at the time of filing the mutual consent petition. Both had unequivocally stated their intention not to resume cohabitation and wished to pursue their careers in different countries. In such circumstances, the bench observed, there was no realistic possibility of reconciliation, and mechanical insistence on procedural technicalities would only extend the hardship faced by the parties.

Court took note of the fact that no waiver application had been filed earlier but accepted the parties’ submission that this omission should not have resulted in outright rejection of the petition. It held that the family court ought to have afforded an opportunity to cure the defect, particularly in light of settled legal position.

Allowing the appeal, the high court set aside the August 8, 2025 order and restored the divorce suit to the file of the family court. The family court was directed to consider the waiver application, if filed within two weeks, and decide the matter afresh in accordance with law, uninfluenced by its earlier order. The family court has been asked to complete the exercise at the earliest and not later than six months.

No order as to costs was passed.

Case Title: xxx  vs. NA

Order Date: December 22, 2025

Bench: Justice Sangeeta K. Vishen and Justice Nisha M. Thakore