One-Year Separation Period Requirement For Mutual Consent Divorce U/S 13B(1) HMA Is Waivable U/S 14(1): Delhi HC

The Delhi High Court held that the one-year separation period prescribed under Section 13B(1) of the Hindu Marriage Act, 1955, as a prerequisite for filing the first motion for mutual consent divorce, can be waived by invoking the proviso to Section 14(1) of the Act.

The case before the Delhi High Court involved a matrimonial dispute in which both spouses sought divorce by mutual consent. The central question was the mandatory nature of the one-year separation requirement under Section 13B(1) of the Hindu Marriage Act, 1955. Due to conflicting judicial interpretations, the matter was placed before a Full Bench to settle the legal position.

The Court clarified that the one-year period under Section 13B(1) HMA for presenting the first motion may be waived at the discretion of the Family Court or the High Court, allowing courts to entertain a first motion even before the expiry of the stipulated period.

A Full Bench comprising Justice Navin Chawla, Justice Anup Jairam Bhambhani, and Justice Renu Bhatnagar observed, "The statutory period of 01-year prescribed under section 13B(1) of the HMA as a pre-requisite for presenting the first motion, can be waived, by applying the proviso to section 14(1) of the HMA; The waiver of the 01-year separation period under section 13B(1) of the HMA does not preclude waiver of the 06-month cooling-off period for filing the second motion under section 13B(2); and waiver of the 01-year period under section 13B(1), and the 06-month period under section 13B(2), are to be considered independently of each other.”

The Court ruled that the waiver can be granted both by the Family Court as well as the High Court and as contemplated in the proviso to Section 14(1) of the HMA, where a Court finds that the waiver of the 01-year period under Section 13B(1) has been obtained by misrepresentation or concealment, the Court may defer the date on which the divorce would take effect, as may be considered appropriate; or may dismiss the Divorce Petition, at whichever stage it is pending, without prejudice to the right of the parties to present a fresh Petition under Section 13B(1) of the HMA after expiration of the 01-year period, on the same or substantially the same facts as may have been pleaded in the Petition so dismissed.

"Such waiver is not to be granted merely for the asking but only upon the court being satisfied that circumstances of “exceptional hardship to the petitioner” and/or “exceptional depravity on the part of the respondent” exist, while also testing the case on the anvil of the considerations set-out in Pooja Gupta.” it stated.