New Delhi: A one-year separation period is not mandatory for couples seeking divorce by mutual consent and can be waived in appropriate cases, the Delhi High Court said.
A special bench of Justices Navin Chawla, Anoop Jairam Bhambhani and Renu Bhatnagar said the one-year separation requirement, mentioned in Section 13B(1) of the Hindu Marriage Act, is directory, not compulsory.
Answering a reference on whether courts are bound by a rigid timeline before entertaining a plea for mutual consent divorce under the Hindu Marriage Act, the court observed that there is little purpose in forcing unwilling spouses to remain trapped in an unwanted marital relationship.
“Is any court compelled to prevent divorce by mutual consent, thereby pushing unwilling parties not into marital bliss, but into a marital chasm?” the bench asked.
The high court also said that waiving the one-year separation period under Section 13B(1) does not bar a separate and independent consideration of waiving the six-month ‘cooling-off’ period prescribed under Section 13B(2), and that both waivers need to be assessed independently.
The court made it clear that the one-year period waiver can only be granted if it is satisfied that the petitioner is facing “exceptional hardship” or there is “exceptional depravity” on the part of the respondent.
Family courts and high courts are empowered to grant such waivers, but if the relief is found to have been obtained on incorrect facts or grounds, the court may shift the effective date of divorce appropriately under Section 14(1) of the Act.
A pending divorce petition may even be dismissed outright in such cases, the bench said.
But parties whose petitions are dismissed on this ground will be entitled to file a fresh petition after completing one year of separation.
