Can the 6-Month Cooling Period Be Waived in Mutual Divorce? Conditions, Process and Application Format

Yes. The six-month cooling period under Section 13B(2), Hindu Marriage Act, 1955 is directory, not mandatory, and a Family Court can waive it. The Supreme Court held this in Amardeep Singh v. Harveen Kaur (2017) and confirmed in Misha Somani v. Rituraj Somani (2026) that its conditions are not a rigid checklist. The couple must file an application for waiver showing that reconciliation is impossible and all issues are settled.

Key Takeaways

• The six-month cooling period between the first and second motions in a mutual consent divorce can be waived by the Family Court, because the Supreme Court has held it to be directory, not mandatory.
• In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court listed four factors for waiver: the separation and waiting periods have effectively passed, mediation has failed, all issues are settled, and waiting would only prolong the parties’ agony.
• In Misha Somani v. Rituraj Somani (decided 2 February 2026), the Supreme Court held that lower courts had wrongly treated those factors as mandatory conditions and granted the divorce without the waiting period.
• A waiver application can be filed at or after the first motion, usually about one week after it, supported by facts and documents.
• The one-year separation required before filing under Section 13B(1) is a separate requirement and is generally not waived by Family Courts.
• The Supreme Court can also dissolve a marriage under Article 142 of the Constitution without the waiting period (Shilpa Sailesh v. Varun Sreenivasan, 2023).

Introduction

For couples who have already lived apart for a long time and settled every issue, the six-month wait between the first and second motions can feel pointless. It delays alimony payments, remarriage, property decisions and simply moving on.

Indian courts recognise this. Since 2017, the Supreme Court has made clear that the six-month period is meant to allow reconciliation, not to trap couples who have no chance of getting back together. In February 2026, it went further and corrected courts that were applying the waiver test too strictly.

This guide explains when the cooling period can be waived, what the courts look for, how to apply, a sample application, and what to do if the Family Court refuses.

What Is the Six-Month Cooling Period?

It is the minimum gap of six months that Section 13B(2) of the Hindu Marriage Act sets between filing a joint divorce petition and the second motion, meant to give the couple time to reconsider.

What the law says

(a) The statute: Section 13B(2) provides that the court will hear the second motion “not earlier than six months after the date of the presentation of the petition” and “not later than eighteen months after the said date”. Section 13B(1) separately requires the spouses to have lived apart for one year or more before filing.

(b) What courts have held: In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period is directory, not mandatory, and that the court can waive it in suitable cases. In Amit Kumar v. Suman Beniwal (2021), the Court reiterated that the period is not mandatory. In Misha Somani v. Rituraj Somani (2026), it held that the Amardeep Singh factors are illustrative, not exhaustive.

(c) Practical advice: A waiver is not automatic. You must ask for it through an application and give the court facts showing why waiting would serve no purpose.

The law at a glance

When Can the Six-Month Period Be Waived?

The court considers whether waiting would serve any purpose, guided by the factors in Amardeep Singh and the clarification in Misha Somani.

The Amardeep Singh factors (2017)

The Court also said the waiver application can be filed one week after the first motion, giving reasons, and that the court should decide it on the facts.

The 2026 clarification: Misha Somani v. Rituraj Somani

In Misha Somani v. Rituraj Somani (Civil Appeal No. 801 of 2026, decided 2 February 2026), the Family Court and the High Court had refused a waiver by treating the Amardeep Singh factors, including the eighteen-month separation, as mandatory conditions. The Supreme Court held that this was a misreading:

• The factors are illustrative, not exhaustive.
• Where there is no possibility of reconciliation and the parties have settled their disputes, the waiting period should not be insisted on.
• The Court used its power under Article 142 to grant the divorce and recorded the parties’ settlement as part of its order.

High Courts have followed the same approach. For example, a Division Bench of the Gujarat High Court in AMY v. NA (2025) held that rejecting a mutual divorce petition only because the six months had not passed was unsustainable, and sent the matter back to the Family Court.

Can the one-year separation be waived?

The one-year separation under Section 13B(1) is a precondition for filing. Family Courts generally do not waive it. The Supreme Court can grant a divorce under Article 142 in exceptional cases (Shilpa Sailesh v. Varun Sreenivasan, 2023), but this is a discretionary power used only in appropriate cases.

How to Apply for Waiver of the Six-Month Period: Step by Step

File a reasoned waiver application at or soon after the first motion, backed by affidavits and documents.

1. Settle all terms before filing: alimony, custody, visitation, stridhan, property and pending cases.
2. File the joint petition under Section 13B(1) in the Family Court with jurisdiction.
3. Attend the first motion together; both spouses confirm consent and the court records their statements.
4. Complete mediation or counselling if the court refers you, and keep the mediator’s report showing failure of reconciliation.
5. File a joint application for waiver, usually about a week after the first motion, explaining how the factors are met.
6. Attach supporting affidavits and documents: proof of separation date, mediation report, settlement agreement and proof of payments made.
7. Argue the application; the court may question both spouses.
8. If the waiver is allowed, the court hears the second motion straight away or on a short date and passes the decree.
9. If the waiver is refused, consider a revision or petition before the High Court, citing Amardeep Singh, Amit Kumar and Misha Somani, or wait out the period and file the second motion.

Documents to support a waiver application

• Joint petition and first motion order
• Affidavits of both spouses stating the date of separation and failed reconciliation
• Proof of separate residence since the separation date
• Mediation or counselling report
• Signed settlement agreement
• Proof of alimony or other payments already made
• Withdrawal orders or applications for other pending cases, if part of the settlement

Sample Application for Waiver of the Six-Month Cooling Period

Adapt this format to your court and facts with your advocate.

IN THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT, [CITY]

HMA Petition No. [number] of [year]

[Name of husband] … Petitioner No. 1
[Name of wife] … Petitioner No. 2

JOINT APPLICATION FOR WAIVER OF THE STATUTORY PERIOD OF SIX MONTHS UNDER SECTION 13B(2) OF THE HINDU MARRIAGE ACT, 1955

The petitioners jointly submit as follows:

1. That the petitioners were married on [date] at [place] according to Hindu rites and ceremonies.
2. That due to irreconcilable differences, the petitioners have been living separately since [date], a period of more than [number] months, and have not cohabited since then.
3. That the petitioners filed the above joint petition under Section 13B(1) of the Hindu Marriage Act, 1955 on [date], and their statements on the first motion were recorded on [date].
4. That the petitioners attended [mediation / counselling] at [centre] on [dates], and all efforts at reconciliation have failed. There is no possibility of the petitioners living together again.
5. That the petitioners have amicably settled all their disputes under a settlement agreement dated [date], including permanent alimony of ₹[amount], [custody of the child(ren)], return of stridhan and personal belongings, and [withdrawal of other proceedings]. [₹(amount) has already been paid on (date).]
6. That the period of one year under Section 13B(1) and six months under Section 13B(2), counted from the date of separation, has already elapsed.
7. That keeping the petition pending for a further period would serve no useful purpose and would only prolong the agony and uncertainty of both parties, who wish to move on with their lives.
8. That in Amardeep Singh v. Harveen Kaur (2017) and Misha Somani v. Rituraj Somani (2026), the Hon’ble Supreme Court held that the period under Section 13B(2) is directory and may be waived where the circumstances so justify.

PRAYER

It is therefore prayed that this Hon’ble Court may be pleased to waive the statutory period of six months under Section 13B(2) of the Hindu Marriage Act, 1955, take up the second motion forthwith, and pass a decree of divorce by mutual consent.

Petitioner No. 1: [signature] | Petitioner No. 2: [signature]
Advocate for Petitioner No. 1: [signature] | Advocate for Petitioner No. 2: [signature]
Place: [city] | Date: [date]

(Supported by affidavits of both petitioners)

Worked Example: A Successful Waiver

This example shows how a couple meets the conditions.

Vivek and Neha Sharma married in Jaipur in 2020. They have lived separately since 1 March 2025 and have no children.

The court’s decision depends on its assessment of the facts; a waiver is a matter of judicial discretion, not a right.

What If the Family Court Refuses the Waiver?

• Wait out the period and file the second motion after six months.
• Challenge the refusal before the High Court, citing Amardeep Singh, Amit Kumar and Misha Somani, if the Family Court treated the factors as rigid conditions.
• Approach the Supreme Court in rare cases, where it may use Article 142, as in Misha Somani and Shilpa Sailesh.

Each option takes time and costs, so compare it with simply waiting out the remaining period.

Costs and Time

• Waiver application: usually a small court fee, plus advocate’s fees.
• Mediation: usually free at court-annexed centres.
• Time saved: a successful waiver can cut the process from six months or more to a few weeks.
• Challenge in High Court: extra advocate’s fees and time, which may exceed the remaining waiting period.

Common Mistakes When Seeking a Waiver

• Filing the waiver application without settling all terms.
• Giving inconsistent separation dates in affidavits.
• Not completing mediation when referred.
• Not attaching proof of payments or the settlement agreement.
• Assuming a waiver is automatic.
• Seeking a waiver of the one-year separation in the Family Court, which is generally not available.

Key Court Rulings on Waiver

FAQs

1. Can the six-month cooling period in mutual divorce be waived?
Yes. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period under Section 13B(2) of the Hindu Marriage Act is directory, not mandatory. The Family Court can waive it if reconciliation is impossible and the parties have settled all their differences.

2. What are the conditions for waiving the cooling period?
In Amardeep Singh (2017), the Supreme Court listed four factors: the separation and waiting periods have effectively passed counting from separation, mediation has failed, all issues are settled, and waiting would only prolong the parties’ agony. In 2026, the Court clarified that these factors are illustrative, not a rigid checklist.

3. When can we file the application for waiver?
The Supreme Court in Amardeep Singh said the application can be filed one week after the first motion. In practice, couples file it after the first motion is recorded and any mediation is completed, along with affidavits and supporting documents.

4. Is waiver of the six-month period automatic?
No. The couple must apply for it, and the court decides on the facts. The court will want to be satisfied that reconciliation is not possible and that all terms, including alimony and custody, are settled and being complied with.

5. What did the Supreme Court decide in Misha Somani v. Rituraj Somani?
In this case, decided on 2 February 2026, the Supreme Court held that the Family Court and High Court were wrong to treat the Amardeep Singh factors as mandatory and to refuse a waiver. It granted the mutual divorce under Article 142 and made the parties’ settlement part of its order.

6. Can the one-year separation requirement also be waived?
Generally not by a Family Court. The one-year separation under Section 13B(1) is a precondition for filing a mutual divorce petition. The Supreme Court can grant divorce under Article 142 in exceptional cases, as recognised in Shilpa Sailesh v. Varun Sreenivasan (2023).

7. How quickly can we get divorced if the waiver is allowed?
Often within a few weeks to about three months of filing, depending on the court’s schedule. Once the waiver is allowed, the court can hear the second motion immediately or on a short date and pass the decree.

8. What if the Family Court refuses to waive the cooling period?
You can wait out the remaining period and file the second motion, or challenge the refusal before the High Court, relying on Amardeep Singh, Amit Kumar and Misha Somani. Compare the time and cost of a challenge with the time left in the waiting period.

9. Does the waiver apply to Special Marriage Act divorces?
The Supreme Court’s reasoning in Amardeep Singh has been applied by courts to similar waiting periods, including under Section 28 of the Special Marriage Act, 1954. Whether a waiver is granted depends on the court and the facts of the case.

10. Do both spouses need to apply for the waiver?
Yes, ideally jointly. A waiver application in a mutual divorce is usually filed jointly, supported by affidavits of both spouses, because the court must be satisfied that both genuinely want the divorce and have settled all issues.

Conclusion

The six-month cooling period in a mutual divorce can be waived, and after the Supreme Court’s 2026 decision in Misha Somani, courts should not treat the Amardeep Singh factors as a rigid checklist. Couples who have lived apart for a long time, tried mediation and settled every issue should file a reasoned joint waiver application after the first motion, backed by affidavits and proof of the settlement. For advice on your specific situation, consult a qualified advocate.