Can the Six-Month Wait for Mutual Consent Divorce Be Waived?

The short answer, and what the six months is for

A mutual consent divorce under Section 13B of the Hindu Marriage Act 1955 is a two-stage process. At the first motion, husband and wife jointly tell the family court that they have been living separately for a year or more, cannot live together, and have agreed to dissolve the marriage. The second motion, where both confirm their consent and the decree is passed, cannot be moved earlier than six months or later than eighteen months after the first motion was presented.

That six-month gap is what people call the cooling off period. Parliament put it there so that a decision made in anger could be reconsidered, and so that couples who might reconcile had time to do so. For many couples it serves that purpose. For others, who have lived apart for years, settled every rupee and moved on with their lives, it is six months of waiting for a formality.

In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held that the six-month period is directory, not mandatory. The family court has discretion to waive it where the purpose of the cooling off period has already been served and waiting would serve no purpose. Before 2017, couples in this position often had to take the matter to the Supreme Court itself; now the family court can decide it.

The provisions that matter

The Amardeep Singh test: what the court checks before it waives six months

• The separation has already lasted long enough. Amardeep Singh referred to the six months under Section 13B(2), in addition to the one year under Section 13B(1), being over before the first motion itself, that is, about eighteen months of separation by then. Courts have since applied this with some flexibility, as the next sections explain.
• Every attempt at reconciliation has failed. Mediation or conciliation, including efforts under Section 23(2) of the Hindu Marriage Act, Section 9 of the Family Courts Act and Order 32A of the CPC, has been tried and there is no likelihood of success.
• The parties have genuinely settled their differences. This includes alimony, custody of any child and any other pending issues between them.
• Waiting would only prolong the agony. The court must be satisfied that six more months would serve no purpose except to keep two people in a dead marriage.
• The application gives reasons. Amardeep Singh said the waiver application can be filed one week after the first motion, and the court should decide it on the facts, using video conferencing where a party cannot appear.

Is the eighteen-month condition applied strictly?

Read literally, the first Amardeep Singh factor would allow waiver only where the couple had been separated for eighteen months before the first motion. Family courts in Delhi initially read it that way, and some still look closely at the separation period. But the Supreme Court described its own conditions as considerations, and later decisions have treated them as guidance for the court's discretion rather than a rigid checklist.

The question that came up in Delhi was sharper: what if the couple has not even lived apart for a full year? In December 2025 a Full Bench of the Delhi High Court (ABC v. XYZ, 2025:DHC:11467-FB) answered it. The court held that the one-year separation requirement in Section 13B(1) can be waived by applying the proviso to Section 14(1), in cases of exceptional hardship or exceptional depravity, and not merely for the asking. It also held that waiving the one year does not prevent waiver of the six months; each is considered on its own, and where both are waived, the decree can take effect immediately.

In practical terms, this means a couple whose marriage broke down within months, with a clear settlement and a real reason not to wait, can now ask the family court to waive both periods. They will need to show exceptional hardship, not just impatience, and the court will want to be sure the consent of both is free and considered. For couples separated for two or three years, the eighteen-month point is rarely the problem; the quality of the settlement is.

How the waiver works in a Delhi family court, step by step

This is the usual sequence. Individual family court judges vary in what they ask for, so be ready to answer questions in person.

1. Finalise the settlement

   Agree every term in writing: the total alimony and how it is paid, custody and visitation, return of streedhan and articles, and what happens to every pending case. A mediated settlement through a court mediation centre carries the most weight, but a carefully drafted private settlement can also work.

2. Choose the right family court

   Under Section 19 of the Hindu Marriage Act, the petition can be filed where the marriage was solemnised, where the couple last lived together, or where the respondent lives. For Delhi, that means the family court for the relevant district, at complexes such as Tis Hazari, Saket, Karkardooma, Rohini or Dwarka.

3. File the joint first motion petition

   Both spouses sign the petition and supporting affidavits. It sets out the marriage, the date of separation, the failed attempts at reconciliation and the settlement terms. Both appear before the court, which records their statements. Payments due at the first motion stage are usually made here, often by demand draft.

4. File the waiver application

   After at least a week, file an application to waive the six-month period, with an affidavit explaining why each Amardeep Singh factor is met: the length of separation, the failed mediation, the full settlement and the specific hardship that waiting would cause. Attach the settlement and any proof of hardship, such as a job offer abroad.

5. Appear for the waiver hearing

   The court may want to speak to both spouses, sometimes separately, to check that consent is free and that nobody is being pressured. A spouse abroad can usually appear by video conference with the court's permission.

6. Second motion and decree

   If the court allows waiver, the second motion is recorded, often on the same day or within a short period, and the decree of divorce is passed. Remaining payments are made at this stage as the settlement provides. Apply for a certified copy of the decree straight away.

If any criminal case is part of the settlement, such as a cruelty FIR, the decree is usually followed by a quashing petition in the High Court. Plan that step at the same time, not after the divorce.

Time and cost, with and without waiver

What makes a waiver application succeed or fail

Family courts grant waiver most readily where three things are visible on the file: a long, undisputed separation; a written, complete settlement with the first instalment already paid; and a concrete reason the waiting hurts, such as a job abroad, a remarriage that is already fixed, an elderly parent who needs care in another city, or a child caught in uncertainty. An application that just says both parties want it done quickly is weaker.

Applications fail for predictable reasons. The settlement leaves something open, such as custody of a child to be decided later. One spouse appears hesitant when the judge speaks to them. The separation is recent and no exceptional hardship is shown. Or the court senses that one side, often the wife, is being rushed into a settlement she does not fully understand. Judges are protective in that situation, and rightly so.

When Advocate B.K. Singh drafts a waiver application, he writes the hardship paragraph around documents, not adjectives. A visa appointment letter, an employer's joining date or a medical record speaks for itself. He also makes sure the settlement records exactly when each instalment is paid, so that the court can see the first payment has already been made before it is asked to waive anything.

Courts also look at the children. If there is a child, the settlement must deal with custody, visitation, schooling and maintenance in enough detail that the court is confident the child's interests have been thought through. A clause saying custody will be decided mutually is an invitation to refuse waiver.

Documents to have ready for the waiver application

• Marriage certificate, or wedding card and photographs if the marriage was not registered
• Proof of separate residence since the date of separation, such as rent agreements, utility bills or employer letters
• The signed settlement agreement, preferably the mediated settlement from a court mediation centre
• Proof of the first instalment paid, such as a copy of the demand draft or bank transfer
• Details of every pending case between the parties, with court and case numbers
• Documents showing the hardship of waiting: job offer, visa papers, medical records, remarriage details
• Identity proof and recent photographs of both spouses
• For a spouse abroad: passport copy, address abroad, and a power of attorney if a relative will handle paperwork
• Custody and visitation schedule, if there are children, with the child's school details

Pending criminal cases and the order of steps

Many mutual consent divorces in Delhi come after a cruelty FIR under Sections 85 and 86 of the Bharatiya Nyaya Sanhita (old Section 498A IPC), a Domestic Violence Act case and a maintenance claim. The settlement should list each case and what will happen to it. The FIR cannot be closed by the wife withdrawing it before the magistrate; it has to be quashed by the High Court once the settlement is in place. Our guide on whether a 498A case can be quashed after divorce or settlement covers that step.

The usual sequence ties payments to stages: an instalment at the first motion, another at the second motion, and the balance when the High Court quashes the FIR. A waiver of the six months speeds up the middle stage, which means the quashing petition can often be filed within weeks of the first motion rather than months. That shortens the whole process considerably.

Be careful with sequencing. If the husband's side insists on quashing first and the wife insists on the decree first, the deal can stall. A clear written schedule, agreed before the first motion, avoids that. The Delhi High Court has also directed that mediated settlements be drafted precisely, preferably in Hindi as well as English where feasible, naming every case and every party, so that nobody can later say they did not understand what they signed.

If the family court refuses to waive

A refusal is not the end. The first motion remains on record, so the simplest option is often to wait for the six months to run and then move the second motion. If the refusal was because something specific was missing, such as a detailed custody arrangement or proof of separation, you can cure the gap and file a fresh waiver application with better material.

If the refusal is plainly wrong, for example the court treated the six months as mandatory or ignored a settlement and long separation clearly on record, the order can be challenged in the Delhi High Court. Because a waiver order does not finally decide the divorce, the usual route is a petition under Article 227 of the Constitution, which lets the High Court correct a subordinate court that has failed to exercise its jurisdiction properly. Where a family court order finally decides rights, the route is an appeal under Section 19 of the Family Courts Act within 30 days; our page on appeals against family court orders in the Delhi High Court explains that procedure.

In practice, a High Court challenge is worth it only where the time saved matters. By the time an Article 227 petition is heard and decided, a good part of the six months may have passed. If both spouses are cooperative, a fresh, better-documented waiver application in the family court is usually quicker.

There is also the High Court's own role in appeals. Where a contested divorce is already in appeal before a Division Bench and the parties settle, the Bench has in suitable cases recorded the settlement and passed a mutual consent decree, or sent the parties to the family court with directions to decide quickly. Our page on family court appeals covers how settlements during an appeal are handled.

Withdrawing consent before the second motion

A mutual consent divorce needs mutual consent at both stages. In Sureshta Devi v. Om Prakash (1991) the Supreme Court held that either spouse can withdraw consent before the decree is passed, and the court cannot then grant the divorce under Section 13B. This is one reason waiver attracts people: it shortens the window in which one side can change their mind.

But a party who withdraws after taking money or giving undertakings to the court is not free of consequences. Undertakings recorded in a court order can be enforced, and courts have treated deliberate breach of a court-recorded undertaking as contempt. Money paid under a settlement is usually refundable if the deal collapses. The settlement should say so in plain words.

If you are worried that your spouse may back out, the answer is not to rush the waiver but to structure the payments so that neither side gains by walking away halfway through. Advocate B.K. Singh also has couples write into the settlement what they will do if the family court refuses waiver: wait out the six months on the same terms, or reapply within a fixed time. That one clause stops a refused application from turning into a renegotiation of the whole deal.

NRI spouses and appearance by video

Amardeep Singh expressly allowed the family court to use video conferencing where a party cannot appear, and to allow representation through close relatives such as parents or siblings where needed, provided the court is satisfied about identity and consent. Delhi family courts now routinely allow a spouse abroad to join by video for the motions and the waiver hearing, though the first appearance in person is still sometimes asked for.

For an NRI, the waiver can make the difference between one trip and two, or between no trip and one. Prepare a power of attorney for the paperwork, keep your passport and visa copies ready for identity, and confirm with the court in advance what technology and timing it uses. Our guide on how NRIs can handle divorce cases in Delhi without travelling explains these arrangements in more detail.

Common mistakes that cost couples the waiver

• Filing before the settlement is final. A first motion with open issues makes waiver unlikely and wastes a hearing.
• Vague hardship. Wanting to move on is understandable, but courts respond to documents showing concrete harm from waiting.
• Leaving criminal cases out of the settlement. A divorce that does not deal with the FIR invites fresh disputes later.
• Wrong court. A petition filed where neither Section 19 ground applies can be returned, and the clock starts again.
• One spouse unprepared for the judge's questions. Hesitation or contradictions about the settlement can end the waiver request on the spot.
• No plan if waiver is refused. Agree in advance whether you will wait out the six months or reapply, so the settlement does not unravel.

What to do this week

Write down every term of your settlement and every case pending between you, with case numbers. If you have not been through mediation, consider the court mediation centre; a mediated settlement carries weight at the waiver stage. Collect proof of the date you started living separately and of any hardship that waiting would cause.

If the first motion is already recorded, check the date: the waiver application can go in one week later. If the family court has refused waiver, decide quickly between a fresh application and a High Court challenge, and read our page on transferring a matrimonial case if the case is in a city neither of you can easily reach. For a related question, see our guide on whether a divorce decree can be appealed.

For advice on your settlement and waiver papers, or for updates on how Delhi courts are applying the waiting period, you can contact Advocate B.K. Singh.