Delhi High Court on 17th December 2025 held that 1-year separation under S.13B(1) can be waived and 6-month cooling-off under S.13B(2) may also be waived in exceptional cases.

In a significant decision, a 3-Judge Bench of the Delhi High Court (Justices Navin Chawla, Anup Jairam Bhambhani and Renu Bhatnagar) decided important questions on whether spouses can file and obtain divorce by mutual consent even before completing 1 year of their marriage or one year of separation, and how the 6-month cooling-off period can be handled.  

This judgment is extremely helpful for couples who are mutually agreed to separate, but are stuck due to statutory timelines.

The court answered two questions referred to it:

(a) Whether a petition under Section 13B(1) of the Hindu  Marriage Act can be filed by the parties before completing the period of separation of one year?; 

(b) If the answer to the above question is in the affirmative, whether the period of six months between the presentation of the First Motion under Section 13B(1) of the Hindu Marriage Act and the Second Motion under Section 13B(2) of the Hindu Marriage Act, can be waived off by the learned Court even though the parties have not been living separately for more than one year on the date when such waiver is prayed for?

1) One-year “separation” under Section 13B(1) can be waived

The Court concluded that the statutory period of one year under Section 13B(1) can be waived by applying the proviso to Section 14(1) HMA.  

    Why this matters

Many couples are separated (emotionally and practically) but are unable to wait for completion of the one-year separation requirement. This judgment recognizes that in appropriate cases, courts can give relief sooner.

2) Waiver of one year does NOT block waiver of six months

The Court clarified that waiving one year under Section 13B(1) does not prevent the court from also waiving the six-month cooling-off period under Section 13B(2). The two waivers are independent and must be considered separately.  

3) Divorce decree can be effective immediately (no forced waiting)

A very important conclusion: if the court is satisfied that both timelines deserve waiver, the court is not legally requiredto postpone the divorce decree’s effective date. The decree may be made effective forthwith.  

This is particularly relevant for couples who need early closure for:

• safety and dignity,

• relocation / job / immigration,

• remarriage planning,

• avoiding long and purposeless litigation.

4) Waiver is NOT automatic — “exceptional hardship” / “exceptional depravity” required

The Court cautioned that waiver is not to be granted “for the asking.” It can be granted only if the court is satisfied that there is:

• exceptional hardship to the petitioner, and/or

• exceptional depravity on the part of the respondent,
  and the case must also be tested on the factors laid down in Pooja Gupta.  

5) Family Court and High Court both can grant waiver

The Court clarified that waiver can be granted by both:

• the Family Court, and

• the High Court.  

6) If waiver was obtained by concealment/misrepresentation, court can defer or dismiss

The Court also held that if the waiver was obtained by misrepresentation or concealment, the court may:

• defer the date when divorce takes effect, or

• dismiss the petition (without prejudice to file again after one year).  

At Pankaj Kumar & Co., we assist clients in:

• drafting and filing Mutual Consent Divorce (First Motion & Second Motion),

• preparing a strong waiver application (where applicable),

• ensuring settlement terms cover alimony/maintenance, custody, visitation, stridhan/articles, withdrawal of cases, etc.,

• representation before Family Courts in Delhi and in appropriate matters before the Delhi High Court.

If you are planning Mutual Consent Divorce and want to understand:

• whether early filing is possible in your case,

• whether a waiver application can be moved, and

• how to structure a strong settlement,
  you may contact Pankaj Kumar & Co. for consultation and representation.