Six months waiting period for second motion in divorce by mutual consent: no hardship to parties #indianlaws

Whether statutory waiting period of six months referred to in Section 13-B(2) of the HMA can be waived/ condoned by the Court?

Section 13-B of the Hindu Marriage Act, 1955 (HMA) provides for divorce or termination of marital bond by way of mutual consent of the parties to such a relationship. The present revision petition was filed to determine question whether statutory waiting period of six months referred to in Section 13-B(2) of the HMA can be waived/ condoned by the Court?

The reason stated in the application  for seeking waiver of six months period inmoving the second motion was that the parties to the petition are quite young and have been living separately from each other for the last more than two years and both of them being well educated and mature have decided to determine the conjugal relationship after due deliberations and a series of mediations.

The Court observed that the provision relating to obtaining divorce by way of mutual consent was intended to liberalise the provisions relating to divorce. The Legislature purposely chose not to add any Proviso granting relaxation to the conditions imposed under Section 13B(1) and/or 13B(2) of HMA. Section 13B is an exception to the proceedings under any other provision before the court of competent jurisdiction for dissolution of marriage between the parties because in a petition under Section 13B of the Act there is no burden of proof on either of parties and the Court is granted power to dissolve the marriage between the parties by a decree of divorce on the ground of mutual consent.

The Court can pass decree for divorce on mutual consent only upon satisfaction of the grounds stated therein and subject to the satisfaction of the period specified in law and is not vested with any specific or even general power to condone or waive the period stipulated either under Section 13B(1) or under Section 13B(2) of the Act. Once such a petition is filed, the court has to satisfy itself of the statutory requirements and thereafter, the parties are expected to take out a second motion which again has to be a joint motion but not earlier than six months and not later than 18 months of the first motion.

The parties still have to satisfy the court that the said petition was not withdrawn and the court is expected to record its satisfaction after hearing the parties and on making such enquiry as it thinks fit that the averments in the petition are true, court may pass a decree declaring the marriage to be dissolved on the ground of mutual consent. Just because the parties would have to wait for a period of six months from the date of presentation of the first motion, cannot be termed as hardship or an undue hardship making a case to deviate from rule of plain interpretation.

Even the Supreme Court also in one of its 2009 decision, had held that only Supreme Court, in special circumstances can pass appropriate orders to do justice to the parties in a given fact situation by invoking its powers under Article 142 of the Constitution, but in normal circumstances the provisions of the statute have to be given effect to. The revision petition was accordingly dismissed.

The author of the article is Anupam Srivastava who can be reached at

[Pooja Deswal vs. Sagar Deswal]

(P&H HC, 09.06.2014)