Waiver Of Cooling-off Period In Mutual Consent Divorce

Divorce denotes the legally recognized dissolution of a marital relationship, thereby releasing both spouses from their corresponding rights, duties, and obligations. Grounds for divorce may vary depending upon personal laws, and typically include adultery, cruelty, desertion, forced religious conversion, child marriage, and other enumerated factors.

Divorce by Mutual Consent

Divorce by mutual consent is considered the most expedient and amicable method of terminating a marriage, as it minimizes adversarial litigation, financial costs, and emotional strain. For such dissolution, both parties must provide unequivocal consent with reference to all ancillary matters such as permanent alimony, maintenance, and custody arrangements for minor children, if any.

Waiver of Cooling-Off Period

Pursuant to Section 13B (2) of the Hindu Marriage Act, 1955, a statutory interregnum of six months—often referred to as the “cooling-off” period—is prescribed between the first and second motion. This statutory measure is designed to afford parties an opportunity for reconsideration and possible reconciliation.

Judicial pronouncements have clarified that the six-month waiting period is directory and not mandatory. Accordingly, courts retain discretion to waive the cooling-off period in appropriate circumstances as reflected in the following case laws:

1. In Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, the Supreme Court held that the object of Section 13B is to safeguard against hasty decisions, but where there is no likelihood of reconciliation and all issues inter se have been conclusively settled, continuation of the mandatory period would merely prolong mental agony.
2. In Shilpa Sailesh v. Varun Sreenivasan (2023), INSC 468, the Supreme Court exercised its powers under Article 142 to grant a divorce by mutual consent and waived the six-month cooling-off period under Section 13B (2) of the Hindu Marriage Act. Recognizing that reconciliation was impossible and the parties had been living separately for a considerable time, the Court emphasized that the statutory waiting period may be dispensed with to prevent unnecessary delay, setting a significant precedent for expedited mutual consent divorces in India.
3. In Smt. Priya Gupta vs. Harshvardhan Gupta (2023), AHC:189564 the Allahabad High Court granted a mutual consent divorce under Section 13B of the Hindu Marriage Act, 1955, after the parties had been living separately for several years. Recognizing that reconciliation was impossible, the Court waived the six-month cooling-off period under Section 13B (2). The Court emphasized that a waiver application can be filed one week after the first motion, with reasons for the prayer, and that the waiver is at the discretion of the court. The time gap allows the parties to deliberate, but the object of the cooling-off period is not to prolong an already disintegrated marriage. Once every effort to salvage the marriage has failed, and there is no possibility of reunion or cohabitation, the court may enable the parties to avail a better option — divorce. The waiver is not granted merely on request but only when the court is satisfied beyond doubt that the marriage has shattered beyond repair.
4. In Layak Singh vs Smt. Ekta Kumari (2024) AHC: 54496, the Allahabad High Court focused on the scope of Section 13-B of the Hindu Marriage Act, 1955, particularly sub-section (2), which prescribes a six-month “cooling-off” period after filing for divorce by mutual consent. Relying on Supreme Court precedents such as Amardeep Singh v. Harveen Kaur, the court reiterated that this period is directory, not mandatory, and can be waived where spouses have genuinely settled all issues, there is no possibility of reconciliation, and prolonging the matter would only add to their hardship. Emphasising that the object of Section 13-B is to enable parties to end a dead marriage amicably, the court set aside the Family Court’s refusal and allowed the waiver, permitting the couple to move the second motion without waiting for the entire six months.
5. Further, in Nikhil Kumar v. Rupali Kumar (2016) 13 SCC 383 and Aditi Wadhera v. Vivek Kumar Wadhera, the Supreme Court, while exercising powers under Article 142 of the Constitution, granted waiver where parties were separated for a substantial period, had resolved all disputes, and continuation of the waiting period served no useful purpose.

Conditions for Grant of Waiver

The following factors are generally considered before granting waiver of the cooling-off period:

• The statutory requirement of one year’s separation under Section 13B(1) has been satisfied.
• Comprehensive settlement has been reached between the parties regarding alimony, maintenance, child custody, and division of property.
• Both parties have given free, informed, and voluntary consent to dissolve the marriage.
• Efforts at reconciliation have conclusively failed and there is no possibility of cohabitation being resumed.
• Undue hardship or injustice would be caused by insisting upon completion of the statutory waiting period.

Judicial Discretion

It is noteworthy that the grant of waiver is not automatic. The power lies within the discretion of the court, which must objectively be satisfied that continuance of the cooling-off period would only perpetuate distress and serve no legal or equitable purpose.

Conclusion

The prevailing judicial approach recognizes that where a marriage has irretrievably broken down and both parties are unambiguously desirous of severing matrimonial ties, extension of the cooling-off period is unnecessary. Courts, therefore, adopt a liberal perspective in order to prevent avoidable prolongation of matrimonial disputes and to enable parties to move forward with their lives in peace and finality.

Sep 22, 2025