Waiver of Cooling-Off Period in Mutual Divorce: Amardeep Singh and Shilpa Sailesh
Quick answer: The six-month cooling-off period in Section 13B(2) HMA is not mandatory. In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held it is directory, and family courts can waive it if the one-year separation has run, efforts at reconciliation have failed, the parties are genuinely settled, and waiting would only prolong their agony. Shilpa Sailesh (2023) confirmed the Supreme Court can waive it too.
The rule and its purpose
Section 13B(2) says the second motion cannot be made earlier than six months after the first motion, and not later than 18 months. The idea is to give the spouses time to reconsider. Many couples have already been separated for years and the delay only adds cost and stress.
Amardeep Singh v. Harveen Kaur (2017)
The Supreme Court held that the six-month period is directory, not mandatory, and can be waived by the family court on an application, if the court is satisfied that:
- the statutory one-year separation has passed before the first motion;
- all efforts at mediation and conciliation have failed and there is no chance of reconciliation;
- the parties have genuinely settled their differences, including alimony, custody and other issues; and
- waiting any longer would only prolong their suffering.
Shilpa Sailesh v. Varun Sreenivasan (2023)
A Constitution Bench held that the Supreme Court can dissolve a marriage directly under Article 142 where it has broken down irretrievably, and that the cooling-off period can be waived by the Supreme Court in such cases. It also approved the Amardeep Singh conditions for family courts. See irretrievable breakdown as a ground for divorce.
How to apply for waiver
- File an application with the first motion petition, or soon after.
- Explain how long you have lived apart and where.
- Attach proof: tenancy, bills, messages, earlier orders.
- State that mediation or reconciliation efforts failed.
- Attach the signed settlement covering money, custody and cases.
- Say why waiver is needed: job relocation, remarriage plans, health, or visa issues, though the court mainly looks at the Amardeep Singh conditions.
Our mutual divorce lawyers prepare these applications daily. Compare timelines in how long a divorce takes in Delhi.
Frequently asked questions
Is the cooling-off period compulsory?
No. The Supreme Court says it is directory, and courts can waive it where conditions are met.
Who decides the waiver in Delhi?
The Family Court hearing the petition, on an application.
Can the waiver be refused?
Yes, if the court thinks reconciliation is possible, the settlement is incomplete or consent seems unsure.
Does waiver apply to Special Marriage Act divorces?
Courts have applied similar reasoning to Section 28 SMA, but practice varies; ask your lawyer.
How soon after waiver can the second motion be filed?
Often within days, subject to the court's listing.
Related guides
- Latest Supreme Court judgments on mutual divorce
- Amardeep Singh v. Harveen Kaur (2017)
- Mutual divorce process
- Mutual consent divorce in Delhi 2026
Where we can help
- Mutual divorce lawyer in Delhi
- Divorce lawyer in Delhi
- Supreme Court lawyer in Delhi
- Book an appointment
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Call +91-98680 84425Book an appointmentThis page is general legal information for readers in India, not legal advice, and no lawyer-client relationship is created by reading it. Laws and court practice change, so confirm the current position with a qualified advocate before acting. AM Legal, 2589 Hudson Lane, GTB Nagar, Delhi 110009.