Waiver of Cooling Off Period in Mutual Consent Divorce

Source: Gujarat High Court

Why in News?

The Division Bench of Justices Sangeeta K. Vishen and Nisha M. Thakore in the case of X v. NA (2025) quashed a Family Court order that had rejected a couple's plea for divorce by mutual consent, holding that the six-month cooling off period under Section 13B of the Hindu Marriage Act, 1955 (HMA) is not mandatory and can be waived in appropriate circumstances.

What was the Background of X v. NA (2025) Case? 

• The couple were married on December 9, 2023, and began living separately from January 17, 2024. 
• The husband moved to the United Kingdom for higher studies and proposed to settle there permanently. 
• The wife, settled in Ahmedabad, wished to pursue her career in India. 
• Both parties agreed that reunion was impossible given their geographical separation and career aspirations in different countries. 
• The couple filed an application for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 on April 1, 2025, after more than a year of separation. 
• The second motion for divorce was moved in July 2025, while the statutory six-month cooling off period was to expire in October 2025. 
• The Family Court rejected their plea on August 8, 2025, holding that it was premature and that the six-month cooling off period under Section 13B was not "an empty formality but a meaningful opportunity for reconciliation." 
• The couple filed an appeal before the Gujarat High Court challenging the Family Court's order and seeking direction to decide their divorce application afresh. 
• The counsels for both parties submitted examination-in-chief affidavits confirming that their mutual consent for divorce was given voluntarily, without any force or coercion.

What were the Court's Observations? 

• The Court observed that the period of six months under Section 13B (Divorce by mutual consent) of the Hindu Marriage Act is directory and not mandatory. 
• The bench noted that the parties had been staying separately for more than one year as on the date of presenting the petition, and both had mutually agreed for divorce. 
• The Court held that there was no scope of reunion between the parties, considering they were residing in different countries and pursuing separate career paths. 
• The bench emphasized that not accepting the request of the parties would only prolong their agony, as both were young and desirous of pursuing their careers according to their own wishes. 
• The Court referred to the Supreme Court judgment in Amardeep Singh v. Harveen Kaur, which established that the six-month cooling-off period under Section 13B(2) may be waived where a case is made out. 
• The Court noted that while the couple had not filed a formal application seeking waiver of the cooling off period, they agreed to file such application within two weeks. 
• The bench held that in the interest of justice, it would be appropriate to allow both parties an opportunity to file an application before the Family Court seeking waiver of the cooling off period. 
• The Court allowed the appeal and quashed the Family Court's order rejecting the divorce petition. 
• The Court directed the Family Court to decide the couple's application afresh within six months, in accordance with law. 

What is Section 13 B of Hindu Marriage Act, 1955? 

About:  

• For the purposes of divorce by mutual consent two petitions must be jointly filed by the parties. 
• As per Section 13B (1): 
  • A joint petition for dissolution of marriage shall be presented before the District Court. 
  • Whether the marriage was solemnized before or after commencement of Marriage Laws (Amendment) Act, 1976. 
  • The parties should have been living separately for a period of one year or more. 
  • The petition should provide that they have not been able to live together, and they have mutually agreed that the marriage should be dissolved. 
• Section 13 B (2) provides for second motion: 
  • When should it be filed? 
    • Not earlier than six months after the presentation of the first motion and not later than eighteen months after the said. 
    • If the petition is not withdrawn in the meantime. 
  • How is the decree of divorce passed? 
    • After hearing the parties and after making such enquiry as it thinks fit 
    • That the marriage has been solemnized and that the averments in the petition are true 
    • Pass a decree declaring marriage to be dissolved with effect from the date of decree 
• The purpose of prescribing the above procedure is to give parties some period of togetherness before separation. 
• Marriage is a very important part of any individual’s life and therefore before the marriage is dissolved by mutual consent the parties must be given some reasonable time to reflect on their move to dissolve the marriage. 

Withdrawal of Consent Under Section 13 B: 

• Hitesh Bhatnagar v. Deepa Bhatnagar (2011): 
  • The Court is bound to pass a decree of divorce declaring the marriage of the parties to be dissolved if the following conditions are met: 
    • A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under subsection (1) and not later than 18 months 
    • After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and 
    • The petition is not withdrawn by either party at any time before passing the decree; 
• Smruti Pahariya v. Sanjay Pahariya (2009): 
  • It is only on continued mutual consent of the parties that a decree of divorce under Section 13 B can be passed. 
  • The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.
    

Cooling off Period: 

• Under Section 13 B if the petition is not withdrawn post 6 months (and not later than 18 months) from the date of presentation of petition the Court may pass a decree of divorce. 
• Thus, the parties are given a cooling off period of 6 months. 
• The question that is posed is whether the cooling off period is mandatory or directory? 
  • Amardeep Singh v. Harveen Kaur (2017): 
    • A 2- judge bench comprising of Hon’ble Adarsh Kuamr Goel, Justice and Hon’ble Uday Umesh Lalit, Justice held that in determining if the period is directory or mandatory the language alone is not decisive. Rather the Court has to give regard to the context. 
    • The Court held that the cooling off period can be waived off only after considering the following factors: 
      • 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; 
      • all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; 
      • the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; 
      • the waiting period will only prolong their agony. 
  • Shilpa Shailesh v. Varun Sreenivasan (2023): 
    • A Constitution Bench held that Supreme Court can exercise power under Article 142 (1) of the Constitution and grant divorce by mutual consent dispensing with the waiting period prescribed under Section 13 B. 
    • The Court held that the cooling off period is not to stretch the already disintegrated marriage or to prolong the agony of the parties. 
    • The Court held that apart from the factors mentioned in the case above the Court should also ascertain whether the parties have freely on their own accord arrived at a genuine settlement that took care of alimony, maintenance and other matters. 
    • Thus, the Court held that Section 13B does not put any fetters on the powers of the Court to grant a decree of divorce by mutual consent.