Can You Skip the 6-Month Mutual Divorce Wait?

Amardeep Singh married Harveen Kaur in Delhi on January 16, 1994. They had two children, born in 1995 and 2003. From 2008 onwards, they lived separately. Their disputes produced both civil and criminal proceedings, and on April 28, 2017 they reached a settlement of everything. Under it, Harveen Kaur was to receive permanent alimony of Rs. 2.75 crore, and Amardeep Singh would have custody of the children.

They filed a mutual consent divorce petition, HMA No. 1059 of 2017, before the Family Court at Tis Hazari Court, New Delhi. On May 8, 2017, their statements were recorded. Amardeep Singh had already handed over two cheques of Rs. 50,00,000 each, both honoured, as part payment of the alimony. The couple then asked for the six-month waiting period for the second motion to be waived. They said they had been living apart for more than eight years, with no possibility of reunion, and that any delay would hurt their chances of resettling.

The statutory clock still stood in the way. The couple came to the Supreme Court on the footing that, going by earlier decisions, only the Supreme Court could relax the six-month period. The order under appeal was the one dated May 8, 2017, passed by the Principal Judge of the Family Court. No High Court ruling appears in the record.

Section 13B(1) permits a joint petition on the ground that the parties have been living separately for a period of one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved. Section 13B(2) says the second motion cannot be made earlier than six months after the petition is presented, and not later than eighteen months after that date. The question was whether that six-month gap is a command no court can ignore or a procedural safeguard the court can relax.

Earlier decisions conflicted. In Manish Goel v. Rohini Goel, a two-judge bench held that the Supreme Court's jurisdiction under Article 142 could not be used to waive the statutory six-month period for the second motion, because doing so would contradict a statutory provision. Other decisions, including Nikhil Kumar v. Rupali Kumar, had used Article 142 to waive the period and dissolve the marriage. The judgment records that Article 142 power had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. Manish Goel had not gone into whether Section 13B(2) is mandatory or directory, because that question was never raised there. Amardeep Singh had to answer exactly that.

The Court said the cooling-off period was never meant to force people to stay in a purposeless marriage. Section 13B exists to let parties dissolve a marriage by consent when it has irretrievably broken down, and to rehabilitate themselves. The 1976 amendment was inspired by the thought that forcible perpetuation of the status of matrimony between unwilling partners did not serve any purpose.

• The loophole on "mandatory": The Court held that language alone is not decisive when deciding whether a provision is mandatory or directory. Context, subject matter and object of the provision matter too. Section 13B(2) is therefore directory, so the Family Court is not powerless.
• The Article 142 shortcut: Manish Goel had held that Article 142 could not be used to waive the period. Amardeep Singh took the view that, in the absence of a contrary decision by a larger Bench, the power cannot be exercised contrary to the statutory provisions, especially when no proceedings are pending before the Supreme Court and it is approached only for waiver of the statute. The Court instead held Section 13B(2) directory and left the parties at liberty to move the concerned court for fresh consideration in the light of its order.

The waiver is discretionary, and the court must consider four things:

1. The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties, is already over before the first motion itself.
2. All efforts at mediation and conciliation, including those under Order XXXIIA Rule 3 CPC, Section 23(2) of the Act or Section 9 of the Family Courts Act, have failed, with no likelihood of success from further efforts.
3. The parties have genuinely settled their differences, including alimony, custody of child or any other pending issues.
4. The waiting period will only prolong their agony.

The Court also allowed video conferencing. It permitted genuine representation through close relations such as parents or siblings where a party cannot appear in person for a just and valid reason that satisfies the Court.

This table maps the ruling onto the situations behind searches like "mutual divorce without cooling period" and "Supreme Court judgement on waiver of cooling period divorce". Anyone looking for a Supreme Court judgement on divorce by mutual consent should start here.

• Gather the core papers. You need the joint mutual consent petition under Section 13B(1), proof of how long you have lived separately, and the written settlement covering permanent alimony, child custody and any other pending disputes. If alimony was partly paid by cheque, as in this case, keep the bank records showing the cheques were honoured.
• Collect proof that reunion efforts failed. The judgment points to efforts under Order XXXIIA Rule 3 CPC, Section 23(2) of the Hindu Marriage Act and Section 9 of the Family Courts Act. Keep any record of mediation or conciliation.
• Approach the right forum. The concerned court dealing with the divorce petition decides the waiver. The waiver application can be filed one week after the first motion, giving reasons for the prayer for waiver. The judgment does not lay down a fixed format for it.
• Avoid the biggest mistake. Do not treat waiver as an automatic right. Even when the conditions are satisfied, the waiver is in the discretion of the concerned Court. In this case the Supreme Court did not use Article 142 to waive the period and left the parties at liberty to move the concerned court.