The Supreme Court’s decision in Amardeep Singh vs Harveen Kaur , decided on 12 September 2017, is a milestone. It clarified a long-debated question under Section 13B(2) of the Hindu Marriage Act, 1955—weather Cooling-Off Period in Mutual Consent Divorce is mandatory or directory.
This judgment shifted the approach from rigid adherence to statutory waiting to a more justice-oriented, discretionary interpretation, providing relief to couples whose marriages had irretrievably broken down.
Background of the Case
- Marriage & Separation: The parties married in January 1994, had two children, and lived apart since 2008.
- Settlement: In April 2017, they amicably resolved disputes, agreeing to divorce with ₹2.75 crore as permanent alimony to the wife and custody of children to the husband.
- Issue: While their first motion for divorce under Section 13B(1) was recorded in May 2017, they sought a waiver of the six-month cooling-off period mandated by Section 13B(2).
- Legal Question: Could the court waive this period in exceptional cases, or was it a mandatory statutory requirement?
Statutory Provision at Issue – Section 13B
- 13B(1): Allows a petition for divorce by mutual consent after the couple has been living separately for one year or more.
- 13B(2): Provides that the second motion for divorce can be filed not earlier than six months and not later than eighteen months after the first motion.
Traditionally, courts viewed this six-month period as compulsory, aimed at allowing couples a final opportunity for reconciliation.
Key Legal Issue
Is the six-month period under Section 13B(2) mandatory—requiring strict compliance—or directory, allowing courts to waive it in appropriate cases?
Supreme Court’s Reasoning
The Bench of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit undertook a detailed statutory interpretation:
- Object of the Provision
- Intended to prevent hasty divorces and promote reconciliation.
- Not meant to perpetuate a purposeless marriage or prolong the agony where there is no chance of reunion.
- Intended to prevent hasty divorces and promote reconciliation.
- Mandatory vs. Directory
- The court referred to principles of statutory interpretation: when strict adherence would cause injustice without furthering the object of the statute, the provision should be read as directory.
- The court referred to principles of statutory interpretation: when strict adherence would cause injustice without furthering the object of the statute, the provision should be read as directory.
- Comparative Precedents
- High Courts in Andhra Pradesh, Karnataka, Delhi, and Madhya Pradesh had earlier taken a directory view.
- Kerala High Court had held the opposite.
- Supreme Court precedents on Article 142 were examined, but the Bench decided the matter on statutory interpretation rather than constitutional powers.
- High Courts in Andhra Pradesh, Karnataka, Delhi, and Madhya Pradesh had earlier taken a directory view.
Conditions for Waiver of Cooling-Off Period
The Court held that Section 13B(2) is directory, and waiver is permissible when:
- The parties have been separated for at least one year (under Section 13B(1)) and the six-month period has effectively been covered before the first motion.
- All mediation/conciliation attempts have failed, with no likelihood of reunion.
- All issues—alimony, child custody, property, etc.—are amicably settled.
- Further waiting would only prolong their agony.
Procedural Note:
A waiver application can be filed one week after the first motion with reasons.
Practical Impact for Lawyers and Litigants
- For Lawyers:
- You can now advise clients that waiver is possible at the family court stage—no need to approach the Supreme Court under Article 142.
- Ensure thorough documentation of separation period, failed reconciliations, and settlement terms to strengthen waiver applications.
- You can now advise clients that waiver is possible at the family court stage—no need to approach the Supreme Court under Article 142.
- For Litigants:
- Speeds up resolution where the marriage is beyond repair.
- Reduces emotional and financial strain from prolonged proceedings.
- Speeds up resolution where the marriage is beyond repair.
Significant Observations
- Flexibility in Proceedings: Courts can use video-conferencing or allow representation by close relatives in appropriate cases.
- Rehabilitation Focus: The ruling reflects a shift towards enabling parties to move forward, especially when reconciliation is impossible.
Why This Judgment Matters for Law Aspirants
For students, this case is a textbook example of:
- Statutory Interpretation: How courts balance the letter and spirit of the law.
- Judicial Discretion: Demonstrates the scope of discretion in procedural timelines.
- Social Context: Shows sensitivity to the human aspect of matrimonial disputes.
READ MORE: Can a Second Wife Get Maintenance? SC’s Landmark Ruling in Badshah vs Urmila
Frequently Asked Questions (FAQs)
Q1: What is the “cooling-off” period under Section 13B(2) of the Hindu Marriage Act?
It is the minimum statutory period of six months between the first and second motion in a mutual consent divorce. It was intended to give the couple time for reflection and possible reconciliation before finalising divorce.
Q2: Is the cooling-off period mandatory after the Amardeep Singh ruling?
No. The Supreme Court in Amardeep Singh vs Harveen Kaur held that it is directory, not mandatory. Courts can waive it in appropriate circumstances.
Q3: What conditions must be met for waiver of the six-month period?
- Parties have already lived separately for at least one year before the first motion and the six-month period has effectively elapsed.
- All mediation/conciliation attempts have failed, with no chance of reunion.
- Settlement of alimony, custody, and other pending issues is complete.
- Further waiting would only prolong hardship.
Q4: Can the waiver be granted by the family court itself, or must parties approach the Supreme Court?
Post-Amardeep Singh, family courts and high courts can grant the waiver if the conditions are satisfied. The Supreme Court’s extraordinary powers under Article 142 are not required for such waivers.
Q5: Can the waiver application be filed immediately after the first motion?
Yes, it can be filed one week after the first motion, with a detailed explanation and supporting evidence.
Q6: Does this ruling apply to all religions?
The judgment interprets the Hindu Marriage Act, 1955. However, similar principles of waiver may be applied in analogous provisions of other matrimonial laws, depending on judicial interpretation.
Q7: Does the waiver automatically dissolve the marriage?
No. The waiver only removes the waiting period for the second motion. The second motion must still be filed, and the court must still be satisfied that all conditions for mutual consent divorce are met.
READ MORE: No Maintenance to Educated Wife: Madhya Pradesh High Court
Similar Case Law on Waiver of Cooling-Off Period in Section 13B(2) Cases
- K. Omprakash vs K. Nalini, AIR 1986 AP 167 (DB)
– Andhra Pradesh High Court held that the six-month period is directory and can be waived where parties are already living apart for a long time. - Roopa Reddy vs Prabhakar Reddy, AIR 1994 Kar 12 (DB)
– Karnataka High Court granted waiver where marriage was irretrievably broken. - Dhanjit Vadra vs Smt. Beena Vadra, AIR 1990 Del 146
– Delhi High Court emphasised the purpose of the cooling-off period and allowed waiver to prevent unnecessary hardship. - Dinesh Kumar Shukla vs Smt. Neeta, AIR 2005 MP 106 (DB)
– Madhya Pradesh High Court allowed waiver on the ground of long separation and futility of reconciliation. - Anil Kumar Jain vs Maya Jain, (2009) 10 SCC 415
– Supreme Court held that under Article 142, it can dissolve marriage even when mutual consent conditions are technically not met, in interest of justice. - Nikhil Kumar vs Rupali Kumar, (2016) 13 SCC 383
– Supreme Court waived the six-month period using Article 142 in light of complete settlement and long separation. - Poonam vs Sumit Tanwar, (2010) 4 SCC 460
– Supreme Court exercised discretion under Article 142 in similar circumstances. - Suhasini vs Vijay Kumar, 2018 SCC OnLine Bom 5728
– Bombay High Court applied Amardeep Singh to grant waiver in a case of irretrievable breakdown.
Practical Takeaway for Lawyers
When preparing a waiver application under Section 13B(2):
- Provide proof of separation exceeding statutory period.
- Attach mediation/conciliation failure reports.
- Enclose written settlement terms on financial and custodial issues.
- Emphasise hardship and futility of waiting.
Draft Application for Waiver of Cooling-Off Period
IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT AT _______
HMA Petition No. ____ of 20__
In the matter of:
- [Name of Husband],
S/o ____________,
Aged about __ years,
Residing at _______________________________
… Petitioner No. 1 - [Name of Wife],
D/o ____________,
Aged about __ years,
Residing at _______________________________
… Petitioner No. 2
APPLICATION UNDER SECTION 13B(2) OF THE HINDU MARRIAGE ACT, 1955 SEEKING WAIVER OF THE STATUTORY COOLING-OFF PERIOD OF SIX MONTHS
MOST RESPECTFULLY SHOWETH:
- That the Petitioners have jointly filed the present petition under Section 13B(1) of the Hindu Marriage Act, 1955, for dissolution of their marriage by mutual consent, which was solemnised on [date] at [place].
- That the Petitioners have been living separately since [date], i.e., for a continuous period of more than one year prior to filing the present petition.
- That the First Motion Statement of the Petitioners was duly recorded by this Hon’ble Court on [date].
- That all efforts for reconciliation between the Petitioners, including mediation/conciliation as per Section 23(2) of the Act and Section 9 of the Family Courts Act, have failed, and there is no likelihood of the parties resuming cohabitation.
- That the Petitioners have amicably settled all issues relating to permanent alimony, custody/visitation rights, and any other pending disputes.
- Permanent Alimony: ₹________ (paid/being paid as per settlement terms).
- Custody: [details as per settlement].
- Permanent Alimony: ₹________ (paid/being paid as per settlement terms).
- That prolonging the six-month waiting period would only cause unnecessary hardship and emotional agony to both parties, as the marriage has irretrievably broken down.
- That the Hon’ble Supreme Court in Amardeep Singh vs Harveen Kaur, Civil Appeal No. 11158 of 2017, decided on 12.09.2017, has categorically held that the cooling-off period under Section 13B(2) is directory, and may be waived if the following conditions are met:
(i) Parties have lived separately for more than one year before the first motion;
(ii) Mediation attempts have failed;
(iii) All settlement issues have been resolved;
(iv) Waiting would cause further hardship. - That the Petitioners satisfy all the above conditions and are therefore entitled to waiver of the cooling-off period.
PRAYER
In view of the facts and circumstances stated hereinabove, it is most respectfully prayed that this Hon’ble Court may be pleased to:
a) Waive the statutory cooling-off period of six months prescribed under Section 13B(2) of the Hindu Marriage Act, 1955; and
b) Permit the Petitioners to proceed with the Second Motion immediately, in the interest of justice.
Any other or further order(s) as this Hon’ble Court may deem fit in the circumstances of the case may also be passed in favour of the Petitioners.
[Place]
[Date]
Petitioner No. 1 Petitioner No. 2
Through Counsel
[Advocate’s Name & Enrollment No.]
[Address]
[Contact No.]
Conclusion
The Amardeep Singh vs Harveen Kaur judgment harmonises statutory purpose with practical justice. By declaring the cooling-off period directory, the Supreme Court ensured that matrimonial law serves as a tool for resolution rather than an instrument of prolonged suffering.
For lawyers, it opens avenues for quicker, compassionate legal solutions. For aspirants, it offers a rich study in legislative intent, judicial craftsmanship, and the evolving face of Indian family law.