The reference arose from a judgment rendered by a Division Bench of the Delhi High Court concerning the timeline prescribed for the presentation of a petition for divorce by mutual consent under section 13B(1) of the Hindu Marriage Act, 1955 (“HMA”). In light of the divergent opinion of the Division Bench, it formulated specific questions of law and requested Hon‘ble the Chief Justice to place the matter before a Full Bench for authoritative determination.

The legal questions referred to the Full Bench read as follows:

(a)   Whether a petition u/s.13B(1) of the Hindu Marriage Act can be filed by the parties before completing the period of separation of one year?;

(b)   If the answer to the above question is in the affirmative, whether the period of six months between the presentation of the First Motion u/s.13B(1) and the Second Motion u/s.13B(2), can be waived off by a court even though the parties have not been living separately for more than one year on the date when such waiver is prayed for?

The 3-Judges Bench of the Delhi High Court considered various decisions of the Supreme Court considered Central Civil Services (Pension) Rules, 1972 and recorded –

“23. It is in the foregoing context that we must consider four aspects: First, whether the Family Court and the High Court can completely waive the 01-year period stipulated under section 13B(1) of the HMA, by allowing parties to present the first motion even before they have lived separately for at least 01-year, by invoking the proviso to section 14(1) of the HMA. Second, whether such waiver should be permitted only in cases of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent as contemplated in the proviso to section 14(1). Third, in a case where the 01-year period under section 13B(1) is waived, can the Family Court and the High Court also waive the 06-month cooling-off period stipulated under section 13B(2) of the HMA. Fourth, having waived the 01-year period under section 13B(1) and the 06-month period under section 13B(2) of the HMA, can the court allow the second motion and grant a decree of divorce by mutual consent that is effective forthwith, or, can the second motion be allowed and the divorce decree granted only after expiration of the 01-year separation period stipulated under section 13B(1).”.

The Bench summarised its conclusions as under –

“57.1. The statutory period of 01-year prescribed under section 13B(1) of the HMA as a pre-requisite for presenting the first motion, can be waived, by applying the proviso to section 14(1) of the HMA;

57.2. The waiver of the 01-year separation period under section 13B(1) of the HMA does not preclude waiver of the 06-month cooling-off period for filing the second motion under section 13B(2); and waiver of the 01-year period under section 13B(1), and the 06-month period under section 13B(2), are to be considered independently of each other;

57.3. Where the court is satisfied that the 01-year period under section 13B(1) and the 06-month period under section 13B(2) of the HMA deserve to be waived, the court is not legally mandated to defer the date from which the divorce decree would take effect, and such decree may be made effective forthwith;

57.4. Such waiver is not to be granted merely for the asking but only upon the court being satisfied that circumstances of ―exceptional hardship to the petitioner‖ and/or ―exceptional depravity on the part of the respondent‖ exist, while also testing the case on the anvil of the considerations set-out in Pooja Gupta;

57.5. Waiver, as above, can be granted both by the Family Court as well as the High Court; and

57.6. As contemplated in the proviso to section 14(1) of the HMA, where a court finds that the waiver of the 01-year period under section 13B(1) has been obtained by misrepresentation or concealment, the court may defer the date on which the divorce would take effect, as may be considered appropriate; or may dismiss the divorce petition, at whichever stage it is pending, without prejudice to the right of the parties to present a fresh petition under section 13B(1) of the HMA after expiration of the 01-year period, on the same or substantially the same facts as may have been pleaded in the petition so dismissed.

The reference was answered in these terms