Living Separately For Year Not Strict Requirement For Mutual Divorce: Court

The Delhi High Court on Wednesday clarified that couples seeking divorce by mutual consent are not necessarily required to live separately for at least one year, as prescribed under the Hindu Marriage Act (HMA), 1955, and that the condition can be waived in appropriate cases.

The clarification came in response to a reference made by a Division Bench seeking authoritative guidance on the timeline prescribed for presenting a petition for divorce by mutual consent under the Act.

At the outset, the court framed the issue in stark terms, posing a rhetorical question: "Is a court mandated to stall divorce by mutual consent, thrusting unwilling parties-not into marital bliss, but into a matrimonial abyss?"

A three-judge bench comprising Justices Navin Chawla, Anup Jairam Bhambhani and Renu Bhatnagar held that the statutory requirement of "living separately for a period of one year" under Section 13B(1) of the HMA is directory and not mandatory, and may be waived by the Family Court or the High Court in suitable cases.

Citing several Supreme Court judgments and their subsequent interpretations, the bench said Section 13B(1), which begins with the words "subject to the provisions of this Act", must be read harmoniously under the conditions of Section 14(1) of the HMA. Section 14(1) empowers courts to waive statutory waiting periods in cases involving "exceptional hardship" to the petitioner or "exceptional depravity" on the part of the respondent.

The court reasoned that even where spouses approach the court for divorce by mutual consent, their decision to part ways is necessarily rooted in some underlying cause, though they may have chosen a consensual route to end the marriage.

"In such circumstances, it would be wholly undesirable to keep spouses embroiled in a bad marriage, instead of releasing them from the matrimonial bond," the Bench observed. It added that prolonging such relationships would inflict "undue psychological and emotional distress" on one or both spouses, which in itself could amount to exceptional hardship.

The court further noted that in some cases, delaying the dissolution of a marriage may prevent one or both spouses from forming meaningful relationships in the future, thereby irreparably affecting their prospects of remarriage and social integration.

"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 Bench said.

While acknowledging the social and cultural importance of marriage, the court emphasised that where both spouses are ad idem-in agreement-that the marriage must end, attempts to preserve it would prioritise outward social pretence over the autonomy and dignity of the individuals concerned.

Summarising its conclusions, the High Court held:

The statutory one-year period prescribed under Section 13B(1) of the HMA as a prerequisite for presenting the first motion for mutual divorce can be waived by applying the proviso to Section 14(1) of the Act.

Waiver of the one-year separation period under Section 13B(1) does not automatically entail waiver of the six-month "cooling-off" period for filing the second motion under Section 13B(2). The two waivers are to be considered independently.

Where the 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, it is not legally required to defer the date from which the divorce decree takes effect, and the decree may be made effective forthwith.

Waiver is not to be granted as a matter of course, but only where the court is satisfied that the circumstances of exceptional hardship to the petitioner and/or exceptional depravity on the part of the respondent exist, tested against the parameters laid down by the Supreme Court.

Such a waiver may be granted by both the Family Court and the High Court.

If the court finds that a 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 takes effect, or dismiss the petition at any stage, without prejudice to the parties' right to file a fresh petition after the expiry of the statutory period on the same or substantially similar facts.

The ruling provides significant clarity on the interpretation of waiting periods under the Hindu Marriage Act and reinforces judicial discretion in cases where continuation of a marriage serves no meaningful purpose.