Can the 6-Month Cooling-Off Period for Divorce Be Waived?

This page sets out, in general terms, how can the 6-month cooling-off period for divorce be waived works under Indian law.

When courts can waive the Hindu Marriage Act's cooling-off period, and when a marriage can be dissolved outright as irretrievably broken.

The legal position

In Amardeep Singh v Harveen Kaur (12 Sep 2017), the Supreme Court held that the 6-month cooling-off period under s.13B(2) of the Hindu Marriage Act is directory, not mandatory, and can be waived in appropriate cases.

In Shilpa Sailesh v Varun Sreenivasan (1 May 2023), a Constitution Bench of the Supreme Court held that the Court can use its powers under Article 142 of the Constitution to dissolve a marriage directly where it is irretrievably broken, even without both parties' consent in the usual s.13B form.

In most cases, a mutual consent petition under s.13B is generally filed in two stages: a first motion when the petition is presented, and a second motion (after the cooling-off period, if it applies) confirming that both parties still wish to proceed.

Generally speaking, where either party withdraws consent before the decree is passed, the court generally cannot grant a divorce under the mutual consent route, and the matter would need to proceed, if at all, as a contested petition on another ground.

Documents generally involved

• Marriage certificate
• A settlement or memorandum of understanding on alimony, custody, and property, if agreed
• Proof of residence or jurisdiction for the court where the petition is filed

Common pitfalls

Some common mistakes are worth flagging.

• Assuming the 6-month period is always required — courts can waive it in appropriate circumstances.
• Assuming the Article 142 route to dissolve an irretrievably broken marriage is a Supreme Court power that any family court can exercise — it has, so far, been exercised specifically by the Supreme Court.
• Not finalising the terms of settlement (alimony, custody, property) before the second motion, which can complicate or delay the final decree.

For related reading, see Interim Maintenance: What Rajnesh v Neha Requires, The Special Marriage Act's 30-Day Notice: What It Involves, and Mutual-Consent Divorce in India: How It Works.

Where this applies to a live matter, it is usually worth discussing it in a consultation before acting.

This page is general information about the law in India and is not legal advice. The position can vary with the facts, so it is worth getting advice on your specific situation.