Division Bench sets aside Family Court’s rejection of divorce petition, directs fresh consideration and waiver application under Section 13B of the Hindu Marriage Act.
Ahmedabad, January 5, 2026: In a significant decision on family law procedure, the Gujarat High Court has ruled that the statutory six-month cooling-off period under Section 13B(2) of the Hindu Marriage Act, 1955 (HMA) is directory and not a mandatory bar to the grant of divorce by mutual consent where reconciliation is impossible.
A Division Bench comprising Justice Sangeeta K. Vishen and Justice Nisha M. Thakore delivered the judgment on 5 January 2026 in X v. NA, allowing an appeal against a Family Court order that had dismissed a mutual consent divorce petition on the ground that the cooling-off period had not been formally waived.
Background of the Case
The appellants, a husband and wife married on 9 December 2023, filed a joint petition for divorce by mutual consent under Section 13B of the HMA on 1 April 2025, after residing separately since 17 January 2024. The husband relocated to the United Kingdom for higher education and intended to settle there, while the wife remained in Ahmedabad to pursue her career, resulting in an irretrievable breakdown of marriage.
Under Section 13B of the HMA, a petition for mutual consent requires that the parties have lived separately for at least one year, and, on the presentation of the petition, a six-month period must ordinarily elapse before the second motion is filed. The Family Court rejected the divorce petition on 8 August 2025, holding that the statutory cooling-off period could not be circumvented without a formal waiver application.
Key Legal Issue
The central legal issue before the High Court was whether the six-month cooling-off period under Section 13B(2) is mandatory, such that a mutual consent divorce petition can be summarily rejected for failure to seek a waiver, even where the spouses have lived apart for more than a year and there is no realistic possibility of reconciliation.
High Court’s Findings and Final Ruling
The Gujarat High Court held that the cooling-off period is directory and not mandatory, meaning that strict compliance is not essential where the circumstances make reconciliation unattainable. The Bench observed that the parties had lived separately for over a year, had mutually agreed to dissolve the marriage, and that enforcing the cooling-off interval in a formalistically rigid manner would only “prolong their agony”.
Quashing the Family Court’s order, the High Court restored the mutual consent divorce petition and directed the lower court to consider the application anew, including the waiver of the six-month cooling-off requirement, in accordance with law. The Bench also provided the parties an opportunity to file the customary waiver application within two weeks.
Court’s Reasoning (Brief)
In its reasoning, the High Court applied established principles on statutory construction and prior authority on mutual consent divorce jurisprudence. It noted that Section 13B aims to facilitate the dissolution of marriages that have irretrievably broken down, and that procedural safeguards such as the cooling-off period should not be applied in a way that defeats the substantive objective of the statute. The Court emphasised that the parties had mutually agreed to the divorce, voluntarily waived claims such as future maintenance, and that prospects for reconciliation were remote given their prolonged separation and divergent life choices.
The decision aligns with the Supreme Court’s jurisprudence in Amardeep Singh v. Harveen Kaur (2017), which recognised the discretionary nature of the cooling-off period where justice so demands. The High Court clarified that a requirement that only formal compliance, rather than substance and context, governs mutual consent divorces would be inconsistent with the legislative intent behind Section 13B.
Practical Implications
- The ruling provides guidance to family courts that mechanical insistence on the six-month cooling-off period, without regard to the context of irretrievable breakdown and settled consent, may not be justified.
- Parties seeking mutual consent divorce may now have better prospects for waiver of the cooling-off period where they have lived separately for a substantial period and genuinely seek dissolution.
- The decision may influence lower courts to adopt a pragmatic and equitable approach towards mutual consent divorce petitions, emphasizing substantive justice over procedural formality.
- Family law practitioners may cite this judgment in supporting applications for waiver of waiting periods under Section 13B in similar factual matrices.
The judgment adds clarity on… the discretionary nature of the statutory cooling-off period under Section 13B of the Hindu Marriage Act and the circumstances in which it may be treated as directory rather than a strict precondition to the grant of divorce by mutual consent.
