A Full Bench of the Delhi High Court has held that courts may waive the statutory one-year separation period prescribed under Section 13B(1) of the Hindu Marriage Act, 1955, in appropriate cases, and are not bound to mechanically compel unwilling spouses to remain in a broken marriage.
The reference arose when a Division Bench doubted the correctness of an earlier ruling in Sankalp Singh v. Prarthana Chandra, 2013 SCC OnLine Del 855 and referred key questions to a Full Bench concerning whether a petition for divorce by mutual consent can be entertained before completion of one year of separation, and whether courts can waive both the one-year separation period and the six-month cooling-off period.
Answering the reference, the Full Bench comprising Justice Navin Chawla, Justice Anup Jairam Bhambhani and Justice Renu Bhatnagar held that Section 13B of the HMA is “not a complete code” and must be read harmoniously with the proviso to Section 14(1). The Full Bench concurred with the Division Bench on the first issue, holding that courts are not precluded from entertaining a petition under Section 13B of the Hindu Marriage Act before the expiry of one year of separation, subject to the conditions under the proviso to Section 14(1).
On the second issue, the Court clarified that Family Courts and High Courts have the discretion to waive the one-year separation requirement at the stage of the first motion in cases involving exceptional hardship or exceptional circumstances. The Bench further held that waiver of the one-year separation period under Section 13B(1) does not bar courts from also waiving the six-month cooling-off period under Section 13B(2), provided the conditions laid down by the Supreme Court in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, and Amit Kumar v. Suman Beniwal, (2023) 17 SCC 648 are satisfied.
Departing from Sankalp Singh on one aspect, the Court ruled that once the statutory conditions and safeguards are met, a court is not required to defer the grant of divorce until completion of the one-year separation period. Emphasising decisional autonomy, the Bench observed that “since a marriage must necessarily be the result of free consent between adults, a divorce by mutual consent should also not be obstructed, thrusting unwilling parties – not into marital bliss, but into a matrimonial abyss.”
Accordingly, the court held that the second motion may be entertained and allowed, and a divorce decree may also be granted even before parties have lived separately for a period of less than 1 year, subject to the following conditions-
I. The court is satisfied that the circumstances contemplated under the proviso to Section 14(1) of the Hindu Marriage Act, namely, exceptional hardship or exceptional depravity, are made out.
II. The court should also test the case against the indicative considerations laid down in Pooja Gupta, 2003 SCC OnLine Del 1197. The contrary view taken in Sankalp Singh, to that extent, has been set aside.
Appearances
Appellant- Mr. Rajshekhar Rao, Sr. Advocate (Amicus-Curiae) with Ms. Aashna Chawla, Mr. Ajay Sabharwal, Mr. Wamic Wasim Nargal and Mr. Zahid Laiq Ahmed, Advocates.
Respondent- Mr. Saurabh Kansal, Advocate with Mr. Raghav Vij, Mr. Suraj Kumar, Ms. Ritul Sharma, and Mr. Pratham Malik, Advocates.
