Living Separately For One Year Not Mandatory For Mutual Consent Divorce: Delhi HC Rules
The Court has held that the statutory one-year separation period under the Hindu Marriage Act for seeking divorce by mutual consent is not mandatory and may be waived in appropriate cases by the High Court or Family Courts.
The Delhi High Court on Wednesday ruled that couples seeking divorce by mutual consent are not mandatorily required to live separately for at least one year under the Hindu Marriage Act, 1955, holding that the statutory separation period may be waived in appropriate cases by either the High Court or the Family Court, depending on the facts and circumstances.
The ruling was issued by a three-judge Bench comprising Justice Navin Chawla, Justice Anup Jairam Bhambhani and Justice Renu Bhatnagar while answering a reference made by a Division Bench of the Court.The reference sought guidance on the timeline prescribed for the presentation of a petition for divorce by mutual consent under Section 13B(1) of the Hindu Marriage Act, 1955, and specifically on whether the statutory periods under Section 13B are mandatory or capable of being relaxed.
The Court held that the statutory period of one year prescribed under Section 13B(1) of the Act as a prerequisite for presenting the first motion for divorce by mutual consent can be waived by invoking the proviso to Section 14(1) of the Act.
It further clarified that waiver of the one-year separation period under Section 13B(1) does not bar waiver of the six-month “cooling-off” period prescribed under Section 13B(2) for filing the second motion, and that both waivers must be considered independently.
The Bench ruled that where a Court is satisfied that both the one-year period under Section 13B(1) and the six-month period under Section 13B(2) deserve to be waived, there is no legal mandate to defer the date from which the divorce decree would take effect. In such cases, the decree of divorce may be made effective forthwith.
At the same time, the Court cautioned that waiver cannot be granted as a matter of course and may be allowed only where circumstances of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent are established, in addition to testing the case on the parameters laid down earlier in Pooja Gupta.
The Bench added that, as contemplated under the proviso to Section 14(1), if the Court finds that waiver of the one-year period under Section 13B(1) has been obtained by misrepresentation or concealment, it may defer the date on which the divorce would take effect or dismiss the divorce petition altogether, without prejudice to the parties’ right to file a fresh petition after expiry of the one-year period on the same or substantially similar facts. The reference was answered accordingly.
The Court observed that insistence on rigid timelines in every case could cause irreparable harm to individuals trapped in dead marriages. It noted,“In certain cases, delaying the obliteration of the matrimonial bond may lead to one or the other spouse being unable to form a meaningful relationship with someone else, which would affect their future prospects irreparably, including prospects of remarriage and social integration.”
Emphasising personal autonomy and dignity, the Bench remarked that while the statutory period is intended to allow scope for reconciliation, that objective cannot override lived realities in all cases. “In the face of such a situation, the argument opposing waiver of the statutory period, even though envisaged by the Legislature as a period for reconciliation, would pale into insignificance since all relationships cannot be mended,” the Court said.
The judges further observed,“Though there is no doubt that the sanctity, stability and solemnity of the institution of marriage holds social and cultural significance in our society, where the spouses are ad idem that their marriage must be ended, efforts to save a broken marriage would give primacy to outward social pretence at the cost of the autonomy and dignity of the affected couple.”
Before parting, the Court placed on record its appreciation for the assistance rendered in the matter. It expressed sincere gratitude to senior advocate Rajshekhar Rao, who appeared as amicus curiae, ably assisted by advocates Aashna Chawla, Ajay Sabharwal, Wamic Wasim Nargal and Zahid Laiq Ahmed, as well as advocate Saurabh Kansal, noting that they had rendered invaluable assistance to the Court.
Case Title: SK vs SK
Bench: Justice Navin Chawla, Justice Anup Jairam Bhambhani and Justice Renu Bhatnagar
Date: 18 December 2025