The 6-month statutory “cooling-off” period for mutual consent divorce can be waived if there is zero possibility of reconciliation.

O R D E R

Leave granted.

We have heard the learned counsel appearing for

the parties.

This is a case where both the parties were at ad

idem in getting a divorce by mutual consent. The

High Court by misconstruing the judgment passed by

this Court in Amardeep Singh v. Harveen Kaur –

(2017) 8 SCC 746, was pleased to reject the request

made by the parties, for waiving of the cooling

period of 6 months prescribed under Section 13B(2)

of the Hindu Marriage Act, 1955 (hereinafter

referred to as ‘the Act’). As rightly submitted by

the learned counsel appearing for the parties, the

decision in Amardeep Singh (supra) has been taken

note of, and explained by this Court in Amit Kumar

v. Suman Beniwal – (2023) 17 SCC 648. Paras 18 to 21

of the same states as follows:

“18. Where there is a chance of

reconciliation, however slight, the cooling

period of six months from the date of

filing of the divorce petition should be

enforced. However, if there is no

possibility of reconciliation, it would be

meaningless to prolong the agony of the

parties to the marriage. Thus, if the

marriage has broken down irretrievably, the

spouses have been living apart for a long

time, but not been able to reconcile their

differences and have mutually decided to

part, it is better to end the marriage, to

enable both the spouses to move on with

life.

19. In Amardeep Singh v. Harveen Kaur

(2017) 8 SCC 746, relied upon by the Family

Court and the High Court, this Court held

(SCC p.756, paras 19-20):

“19. Applying the above to the present

situation, we are of the view that where

the court dealing with a matter is

satisfied that a case is made out to waive

the statutory period under Section 13-B

(2), it can do so after considering the

following:

(i) The statutory period of six months

specified in Section 13-B(2), in addition

to the statutory period of one year under

Section 13-B(1) of separation of parties is

already over before the first motion

itself;

(ii) All efforts for mediation/conciliation

including efforts in terms of Order 32-A

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;

(iii) The parties have genuinely settled

their differences including alimony,

custody of child or any other pending

issues between the parties;

(iv) The waiting period will only prolong

their agony.

The waiver application can be filed one

week after the first motion giving reasons

for the prayer for waiver. If the above

conditions are satisfied, the waiver of the

waiting period for the second motion will

be in the discretion of the court

4

concerned.

20. Since we are of the view that the

period mentioned in Section 13-B(2) is not

mandatory but directory, it will be open to

the court to exercise its discretion in the

facts and circumstances of each case where

there is no possibility of parties resuming

cohabitation and there are chances of

alternative rehabilitation.”

20. The factors mentioned in Amardeep Singh

v. Harveen Kaur (supra), in Paragraph 19

are illustrative and not exhaustive. These

are factors which the Court is obliged to

take note of. If all the four conditions

mentioned above are fulfilled, the Court

would necessarily have to exercise its

discretion to waive the statutory waiting

period under Section 13B (2) of the

Marriage Act.

21. The Family Court, as well as the High

Court, have misconstrued the judgment of

this Court in Amardeep Singh v. Harveen

Kaur (supra) and proceeded on the basis

that this Court has held that the

conditions specified in para 19 of the said

judgment, quoted hereinabove, are mandatory

and that the statutory waiting period of

six months under Section 13-B(2) can only

be waived if all the aforesaid conditions

are fulfilled, including, in particular,

the condition of separation of at least

one-and-half year’s before making the

motion for decree of divorce.”

When the parties have taken a conscious decision

to seek a decree of divorce by mutual consent under

Section 13B of the Act, there is no point in keeping

the marriage continuing.

Considering the above, we are inclined to hold

that the order passed by the High Court is liable to

be set aside and the same is, accordingly, set

aside.

Consequently, we are inclined to grant a decree

of divorce by mutual consent by invoking our power

under Article 142 of the Constitution of India.

Accordingly, a decree for divorce shall be drawn

up, and the terms of the Settlement Agreement at

Annexure P/1 before us, shall form part of this

order.

The appeal stands disposed of accordingly.

Pending application(s), if any, shall stand

disposed of.

………………………J.

[M.M. SUNDRESH]

………………………J.

[NONGMEIKAPAM KOTISWAR SINGH]

NEW DELHI;

FEBRUARY 02, 2026.