Mutual Consent Divorce (13B): When the Six-Month Wait Can Be Waived

Mutual Consent Divorce and the Six-Month Gap

Under Section 13B of the Hindu Marriage Act, 1955, a husband and wife who have lived separately for a year or more can jointly ask the Family Court to dissolve their marriage. The joint petition is the first motion. Section 13B(2) then says the second motion can't be moved earlier than six months after the petition is presented, or later than eighteen months. The decree follows the second motion, once the court is satisfied that both still consent.

1. What Amardeep Singh v. Harveen Kaur Decided

In Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, the Supreme Court of India held that the six-month period in Section 13B(2) is directory, not mandatory. The court hearing the petition may waive it on an application by the parties. It's a discretion exercised on the facts of each case, and neither side can claim it as a right.

The judgment gives the court a discretion. It doesn't give the parties a shortcut.

2. The Four Conditions the Court Looks At

1. The one-year separation under Section 13B(1) and the six-month period under Section 13B(2) had both run out before the first motion was filed. In other words, the couple had already lived apart for at least eighteen months when they filed.
2. Mediation and conciliation, including under Order XXXII-A Rule 3 CPC, Section 23(2) of the Hindu Marriage Act and Section 9 of the Family Courts Act, have failed, and further efforts aren't likely to succeed.
3. The parties have genuinely settled their differences, including alimony, Istridhan, custody of any child and other pending issues.
4. The waiting period will only prolong the agony and impede the rehabilitation of the parties.

Meeting all four makes a waiver possible, not certain. The decision stays with the court.

3. What Happens in Practice at the Family Court, Ghaziabad

In our experience, the Family Court at Ghaziabad rarely waives the six-month period. Most couples go through the full six months between the first and second motion, even when everything is settled. Plan for that period, and treat a waiver as the exception.

An application stands on firmer ground when all four conditions show on the record: the date the couple began living apart is clear, the mediation report records that it failed, the settlement deals fully with alimony, Istridhan and custody, and every other case between the parties, such as maintenance under Section 144 BNSS (old Section 125 CrPC), a domestic violence case or a Section 498A IPC (now Section 85 BNS) FIR, is dealt with in the same settlement.

4. How the Application Is Moved

The joint petition and the settlement terms are filed before the Principal Family Court, Ghaziabad. Under Amardeep Singh, the waiver application can be moved one week after the first motion, with reasons. If the court allows it, the second motion can be heard without waiting out the six months. If it refuses, the second motion follows the usual period under Section 13B(2), within eighteen months of the petition. Nobody can promise which way the court will decide.

5. The Supreme Court's Own Power

In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench held that the Supreme Court can, under Article 142 of the Constitution, grant a divorce by mutual consent without the six-month wait. Only the Supreme Court has that power. Before a Family Court, a waiver depends on the Amardeep Singh conditions.