Cooling-Off Period in Divorce: Can It Be Waived?

Divorce by mutual consent was introduced in Indian matrimonial law to reduce hostility and allow couples to part ways with dignity. However, the legislature inserted a statutory waiting period—commonly known as the “cooling-off period”—to ensure that the decision to dissolve the marriage is not impulsive or emotionally driven.

The direct answer is this: the six-month cooling-off period in mutual consent divorce under Section 13B(2) of the Hindu Marriage Act, 1955 can be waived by the court if the conditions laid down by the Supreme Court in Amardeep Singh v. Harveen Kaur (2017) are satisfied.

This article explains in detail the legal framework, judicial interpretation, conditions for waiver, procedural aspects, and important case laws governing the cooling-off period in mutual consent divorce.

1. Legal Framework of Mutual Consent Divorce

Section 13B of the Hindu Marriage Act, 1955

Mutual consent divorce is governed by Section 13B of the Hindu Marriage Act, 1955 (HMA).

It contains two subsections:

Section 13B(1) – Filing of joint petition stating that:
- Parties have lived separately for at least one year.
- They have not been able to live together.
- They mutually agree that marriage should be dissolved.
Section 13B(2) – Provides that:
- After filing the first motion, parties must wait for at least six months.
- The second motion must be filed within 18 months.
- Only then can the court grant a decree of divorce.

This six-month period between the first and second motion is called the “cooling-off period.”

2. Purpose of the Cooling-Off Period

The legislative intent behind inserting the cooling-off period was:

To provide time for reconciliation.
To prevent hasty divorces.
To ensure that consent is genuine and not influenced by temporary anger.
To safeguard the institution of marriage.

The law assumes that emotional conflicts may settle with time, and couples might reconsider their decision.

However, in many cases, especially where parties have already been separated for years, this waiting period causes unnecessary hardship.

3. Is the Cooling-Off Period Mandatory or Directory?

This question created significant judicial debate.

Earlier, many courts treated the six-month period as mandatory, meaning divorce could not be granted before expiry of six months.

However, the Supreme Court clarified the position in:

Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746

The Court held that:

The cooling-off period under Section 13B(2) is directory, not mandatory.
It can be waived in appropriate cases.

The Court observed that forcing parties to wait unnecessarily defeats the object of expeditious justice when there is no possibility of reconciliation.

4. Conditions for Waiver Laid Down in Amardeep Singh Case

The Supreme Court laid down specific conditions under which waiver may be granted:

The statutory period of one year separation under Section 13B(1) is already completed.
There is no possibility of reconciliation.
All issues relating to alimony, custody, and property are settled.
Waiting would only prolong agony.

The Court clarified that waiver is not automatic. It depends on judicial satisfaction.

5. Subsequent Clarification by Supreme Court

In:

Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234

The Supreme Court emphasized that mutual consent must continue till the decree is passed.

If either party withdraws consent before second motion, divorce cannot be granted.

Later, in:

Suman v. Surendra Kumar, (2002) 2 SCC 420

The Court held that consent must be free and not obtained by force, fraud, or undue influence.

These judgments underline that even if the cooling-off period is waived, consent must remain genuine.

6. Article 142 and Direct Divorce by Supreme Court

In certain cases, the Supreme Court has exercised powers under Article 142 of the Constitution to dissolve marriages directly without insisting on statutory waiting periods.

Recently, in:

Shilpa Sailesh v. Varun Sreenivasan (2023) SCC OnLine SC 544

The Constitution Bench held that the Supreme Court can dissolve a marriage on the ground of irretrievable breakdown under Article 142.

However, this power is exclusive to the Supreme Court and not available to trial courts or High Courts.

7. Procedure to Apply for Waiver

If parties want waiver of the cooling-off period, they must:

File an application for waiver along with first motion or immediately thereafter.
Demonstrate:
- Length of separation.
- Settlement terms.
- Impossibility of reconciliation.
Produce settlement agreement before court.

The court may:

Record statements.
Refer parties to mediation.
Verify voluntariness of consent.

If satisfied, the court may waive the waiting period and fix an early date for second motion.

8. Situations Where Waiver Is Commonly Granted

Courts often grant waiver when:

Parties have been separated for several years.
Multiple litigations are pending and settled.
Settlement amount has been paid.
There are no minor children or custody disputes.
Parties are living abroad.

In NRI cases, courts frequently waive the period to avoid repeated travel and hardship.

9. Situations Where Waiver May Be Refused

Waiver may be denied if:

Separation period is short.
Settlement is incomplete.
There is suspicion of coercion.
Child custody issues remain unresolved.
Consent appears doubtful.

Courts exercise caution to prevent misuse.

10. Cooling-Off Period Under Special Marriage Act

Section 28(2) of the Special Marriage Act, 1954 contains similar provisions regarding waiting period.

Courts have applied the principles of Amardeep Singh to cases under the Special Marriage Act as well.

Thus, waiver principles are broadly applicable.

11. Impact on Child Custody and Alimony

Even if cooling-off period is waived, the court independently examines:

Welfare of minor children.
Fairness of alimony.
Voluntariness of settlement.

The waiver does not mean automatic divorce. Judicial satisfaction remains essential.

12. Can Parties Skip First Motion?

No.

The statutory framework requires:

Filing first motion.
Recording statements.
Filing second motion (even if immediately after waiver).

Cooling-off period waiver does not eliminate procedural steps.

13. Practical Timeline After Waiver

If waiver is granted:

Second motion may be taken up within days or weeks.
Court records final statements.
Decree of divorce is passed.

Thus, divorce can be granted within a much shorter timeframe compared to six months.

14. Importance of Proper Settlement Drafting

Since waiver depends on complete settlement, parties must ensure:

Detailed settlement agreement.
Clear payment schedule.
Custody arrangement.
Withdrawal of pending cases.

Ambiguous agreements may lead to rejection of waiver.

15. Role of Mediation

Family Courts Act encourages reconciliation.

Even if waiver is sought, court may:

Refer parties to mediation.
Confirm absence of reconciliation possibility.

If mediation fails, waiver application is considered.

16. Judicial Discretion

Waiver is discretionary, not a matter of right.

The Court in Amardeep Singh emphasized that:

The court must exercise discretion based on facts and circumstances.

Thus, each case is evaluated individually.

17. Practical Challenges

Some practical issues include:

Courts insisting on physical presence.
Delay in listing waiver applications.
Procedural formalities.
Opposition by one party at last moment.

Proper preparation minimizes these risks.

18. Frequently Raised Questions

Can cooling-off period be waived automatically?

No. It requires judicial order.

Can one party seek waiver alone?

Both parties must jointly seek waiver, as mutual consent is required.

What if one party withdraws consent?

As held in Hitesh Bhatnagar v. Deepa Bhatnagar, divorce cannot be granted if consent is withdrawn before decree.

19. Key Case Laws Summary

Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746
Cooling-off period is directory and can be waived.
Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234
Consent must continue till decree.
Suman v. Surendra Kumar (2002) 2 SCC 420
Consent must be free and voluntary.
Shilpa Sailesh v. Varun Sreenivasan (2023)
Supreme Court can dissolve marriage under Article 142.

20. Strategic Advice Before Seeking Waiver

Before applying for waiver:

Ensure full settlement compliance.
Complete payment if required.
Draft clear undertaking.
Confirm no pending disputes.
Prepare for court questioning.

Waiver applications fail primarily due to incomplete settlement.

Conclusion

The six-month cooling-off period under Section 13B(2) of the Hindu Marriage Act was introduced to protect the sanctity of marriage and prevent impulsive decisions. However, judicial interpretation, particularly in Amardeep Singh v. Harveen Kaur (2017), has clarified that this period is directory and can be waived when there is no possibility of reconciliation and all disputes are fully settled.

Courts balance two objectives: protecting the institution of marriage and preventing unnecessary prolongation of broken relationships. When parties have genuinely decided to part ways and resolved all issues, insisting on a waiting period serves no purpose.

Therefore, cooling-off period can indeed be waived, but only upon judicial satisfaction that the marriage has irretrievably broken down and that mutual consent is free, informed, and final. Proper legal guidance, comprehensive settlement drafting, and clear documentation significantly improve the chances of obtaining waiver and securing timely divorce.

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