Mutual Consent Divorce and Waiver of Six-Month Waiting Period Explained

The Supreme Court of India in Civil Appeal No. 4490 of 2016 addressed the issue of whether the mandatory six-month waiting period under Section 13-B(2) of the Hindu Marriage Act, 1955, could be waived in a case of mutual consent divorce. The case involved Nikhil Kumar (Petitioner) and Rupali Kumar (Respondent), who had filed for divorce citing irreconcilable differences.

The couple had been living separately for nearly five years, and after serious consideration, they decided to file for divorce. They approached the Family Court at Tiz Hazari District Courts, Delhi on March 29, 2016. The court granted their first motion on April 1, 2016, and the matter was scheduled for a second motion in October 2016. However, the respondent planned to move to New York on April 29, 2016, making it difficult for her to return for the second motion.

Petitioner’s Arguments

The petitioner argued that:

• The mandatory six-month waiting period should be waived, as both parties had been living separately for a significant period.
• The respondent’s planned move to New York would make it difficult for her to return to India for the final hearing.
• Both parties had taken an informed decision without coercion.

Respondent’s Arguments

The respondent filed an affidavit confirming that:

• She had been unhappy in the marriage since 2011 and needed a fresh start.
• She was moving abroad and returning within six months was impractical.
• The divorce was mutually agreed upon and done with free will.

Judgment

The Supreme Court, invoking its powers under Article 142 of the Constitution, allowed the waiver of the six-month waiting period. The Court stated:

“Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties.”

The Court dissolved the marriage and directed the Family Court to take immediate action in processing the divorce decree.

Key Takeaways

• The six-month waiting period under Section 13-B(2) can be waived in exceptional circumstances.
• Article 142 allows the Supreme Court to pass orders to ensure complete justice.
• The case reinforces the importance of mutual consent and the practicality of legal provisions.

This ruling sets a precedent for cases where one party is unable to be present for the second motion, allowing flexibility in divorce proceedings.

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Download Judgment: Nikhil Kumar vs Rupali Kumar Supreme Court of India Judgment Dated 27-04-2016-1741854734372.pdf