Can Six month locking period be waived in Divorce by Mutual Consent?

Can Six month locking period be waived in Divorce by Mutual Consent under Section 13B of Hindu Marriage Act 1955 ?


Before it must have knowledge, What is Divorce by mutual Consent ?

Divorce puts an end marital tie. When the parties failed to end their differences amicably, a divorce petition may be submitted by any of the spouse to the district court on any of the grounds given in section 13 of the Act. Sometimes both the spouse decided to live separately with amicably and peacefully.

Hence they may take the divorce on mutual consent. Divorce by mutual consent was not incorporated in the original Act of 1955, It has been inserted in the Section as 13B by Hindu Marriage (Amendment) Act 1976.

Section 13B states as

(1) Subject to provision of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both Parties to a marriage together, whether such marriage was solemnized before or after the commencement of the marriage law(Amendment) Act, 1976(68 of 1976), on the ground that they 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 shoul be dissolved.

(2) On the motion of both parties made not earlier than six months after the date of presented of the petition referred to in Sub section(1) and not later than eighteen months, after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.

Section 13B and 23(1)(bb) indicate that in the case of a joint petition by husband and wife for a dissolution of marriage by a decree of divorce petition has to be presented to the District Court supported by affidavit of both parties . It must be proved.

1. That the parties have been living separately for a period of one year or more
2. That they have not been able to live together 
3. That they have mutually agreed that the marriage should be dissolved and
4. That the consent of the parties has been obtained 

If all these four conditions are fulfilled, divorce cannot be refused, provision laid down under Section 13 B are mandatory provision

Can locking period of six month On the motion of both parties made not earlier than six months after the date of presented of the petition referred to in Sub section(1) and not later than eighteen months?

In case of Sangeeta Singh vs Pradeep , 2 Sep 2020, High Court Pumjab and Hariyana

(Divorce) Both parties are educated, so it can be assumed that they understand their best interests: Punjab and Haryana High Court exempted from six months cooling-off period

Noting that 'both parties involved in this marriage are over 30 years of age and educated, it is therefore presumed that they understand their best interests', the Punjab and Haryana High Court mandated a mutually agreed divorce case Ordered to be exempted from the six-month cooling-off period.

The petitioners filed a reconsideration petition before Justice Sanjay Kumar seeking dissolution of their marriage through a decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 on the basis of mutual consent. The divorce petition in this case was filed in June 2020. After which he filed an application for exemption from the statutory waiting period or waiting period of six months prescribed under Section 13-B (2) of the Act 1955. But the Additional District Judge, Mohali, under the order dated 06 August 2020, rejected the said application.

Relying on the judgment given by the Supreme Court in the Amardeep Singh case in 2017, the single bench reiterated that

"Broadly, such exemption of locking period of six month can be considered only when (a) other than the statutory period of one year of separation of the parties under section 13-B (1), section 13-B (2) The statutory period of six months specified in it should be completed before the first motion, (b) all attempts to mediate / compromise to reconcile the parties have failed and any further efforts will be successful in this direction. (C) when both the parties have actually settled their differences including alimony, children's custody or other pending issues, (d) the waiting period is only exacerbating their suffering. ''

The Hon’ble Court said that the petitioners got married in November 2010 and have been living separately since January 2018. According to him, there is no possibility of reconciliation and they are firm in their resolve to divorce. Apart from this, the petitioners have also prepared an MoU (Memorandum of Understanding) on ​​10 June 2020 disposing of all the issues. In such a situation, there is no dispute regarding the custody of his minor daughter.

The bench said, "In view of above situation, it is an opinion of court that it was an suitable case for the Additional District Judge to exercise his right in favor of the petitioners citing the law laid down by the Supreme Court and waived it . " waiting period.

At the same time, the bench quashed the order of 6 August 2020, under which the statutory waiting period was refused to be abolished or waived.