The six-month cooling-off period in mutual divorce under Section 13B(2) of the Hindu Marriage Act, 1955 can be waived by the court if certain conditions are met. This waiver allows couples to obtain a divorce faster instead of waiting for six months after the first motion.
1. Understanding the Cooling-Off Period in Mutual Divorce
When a couple files for mutual divorce, the process involves two motions:
- First Motion: Both spouses jointly file a petition stating that they cannot live together and want a divorce.
- Cooling-Off Period: The court grants six months for reconciliation, allowing the couple to reconsider their decision.
- Second Motion: After six months, the couple reconfirms their decision to divorce, and the court grants the final divorce decree.
However, in some cases, waiting for six months may be unnecessary if both parties are certain about their decision and have already been separated for a long time. In such situations, the cooling-off period can be waived.
2. Legal Basis for Waiving the Cooling-Off Period
The Supreme Court of India, in the landmark judgment Amardeep Singh v. Harveen Kaur (2017), ruled that the six-month waiting period is not mandatory. The court stated that family courts have the discretion to waive this period if:
- The couple has been living separately for at least 18 months before filing for divorce.
- There is no chance of reconciliation between the spouses.
- All issues regarding alimony, child custody, maintenance, and property division are mutually settled.
- The divorce petition is filed without coercion, fraud, or undue influence.
The Supreme Court held that forcing couples to wait for six months when reconciliation is impossible serves no purpose and is unnecessary.
3. Steps to Get the Cooling-Off Period Waived
Step 1: File the Joint Petition for Mutual Divorce
- Both spouses must jointly file a petition under Section 13B of the Hindu Marriage Act, 1955 in the family court where they last resided together or where the marriage was solemnized.
- The petition should state that they cannot live together and that they mutually agree to divorce.
Step 2: Record Statements Before the Court (First Motion Hearing)
- The court will hear the matter and record the statements of both spouses.
- The court will then grant a six-month cooling-off period before the second motion can be filed.
Step 3: File an Application for Waiver of the Cooling-Off Period
- After the first motion is granted, both parties can jointly file an application requesting the court to waive the six-month waiting period.
- The application should include:
- The fact that the couple has lived separately for at least 18 months.
- A declaration that there is no chance of reconciliation.
- Confirmation that all issues related to alimony, child custody, and property division have been settled amicably.
- A request for immediate granting of the final divorce decree.
Step 4: Court Hearing on the Waiver Application
- The court will hear the waiver application and examine whether the conditions for waiving the cooling-off period are met.
- The judge will verify that there is no possibility of the couple reconciling and that both parties genuinely wish to divorce.
Step 5: If the Court Approves the Waiver, File the Second Motion
- If the court is satisfied, it will waive the cooling-off period and allow the couple to proceed with the second motion immediately.
- The couple must again appear before the court to confirm their decision to divorce.
Step 6: Court Grants the Divorce Decree
- The court will grant the final divorce decree, officially dissolving the marriage.
- Once the decree is issued, the couple is legally divorced and free to remarry.
4. Documents Required for Waiver of Cooling-Off Period
To file for the waiver, the following documents are required:
- Mutual divorce petition (first motion application)
- Marriage certificate
- Proof of separation (rental agreement, utility bills, or affidavits stating separation)
- Settlement agreement (if applicable, for alimony, child custody, and property division)
- Affidavit stating no possibility of reconciliation
- A joint application for waiver of the cooling-off period
5. When Can the Cooling-Off Period Be Denied?
The court may refuse to waive the cooling-off period if:
- The couple has not been separated for at least 18 months.
- The court believes reconciliation is possible.
- There is coercion or undue influence from either party.
- Any legal dispute over alimony, property, or child custody is unresolved.
In such cases, the couple will have to wait for the full six-month period before filing the second motion.
6. Benefits of Waiving the Cooling-Off Period
- Faster divorce process – Avoids unnecessary delays in getting a divorce.
- Less emotional stress – Helps both parties move on with their lives sooner.
- Cost-effective – Reduces legal expenses by shortening the duration of court proceedings.
- Avoids unnecessary litigation – If reconciliation is not possible, waiting serves no purpose.
7. Conclusion
The six-month cooling-off period in mutual divorce is not mandatory and can be waived if the couple has been separated for at least 18 months and there is no chance of reconciliation. The Supreme Court judgment in Amardeep Singh v. Harveen Kaur (2017) gives family courts the discretion to grant an immediate divorce if all terms are settled amicably. By filing a waiver application after the first motion, couples can speed up the divorce process and obtain a decree in as little as 1-2 months instead of waiting for six months.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304