Cooling-off period waiver in the Ghaziabad Family Court: the Amardeep Singh test

The provision

Section 13B(2), Hindu Marriage Act: second motion not earlier than six months and not later than eighteen months after the first.

The judgment

Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746. The six months is directory; the court may waive it.

The four conditions

Eighteen months of separation before the first motion, mediation failed, every issue settled, and waiting would only prolong the agony.

Which court

Family Court, Ghaziabad, at the District Court Complex, RDC. Monday to Saturday, 9 am to 9 pm at Chamber 817.

A mutual consent divorce under Section 13B of the Hindu Marriage Act runs in two motions. The joint petition is filed and the spouses' statements are recorded at the first motion. The decree comes at the second motion, which the Act says cannot be moved earlier than six months after the first. That gap is the cooling-off period, and for a couple who separated two or three years ago and have settled everything, it is six more months of a marriage that ended long before the petition.

Since 2017 the gap can be waived. This article sets out what the Ghaziabad Family Court looks for before it waives it, and how the application is put before the judge so that it is decided rather than adjourned.

What Amardeep Singh decided

Before 2017 the High Courts disagreed on whether the six months in Section 13B(2) could be shortened at all. The Supreme Court settled it in Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746. The period, it held, is directory and not mandatory. It exists to give a couple a chance to reconsider, and where there is nothing left to reconsider, the court is not obliged to make them wait.

The judgment did not abolish the wait. It gave the Family Court a discretion, and it said when that discretion may be exercised. A waiver is asked for, with reasons, and granted on the facts of the case. A couple who treat it as automatic, or who file without the facts to support it, get a refusal and lose the hearing.

The four conditions the judge checks

The Supreme Court listed the circumstances in which the waiver may be considered. The Family Court at Ghaziabad goes through them in order, and the application is drafted to answer each one.

• Eighteen months of separation before the first motion. The one year that Section 13B(1) requires before a petition can be filed, plus the six months of Section 13B(2), must both be over before the first motion is moved. The period runs from the date the spouses actually stopped living together as husband and wife. A couple under the same roof but in separate rooms can be living separately in law, but that is harder to prove and the court asks more questions.
• Mediation and conciliation have failed. The judgment requires that efforts to reconcile the couple, under Section 23(2) of the Act or Section 9 of the Family Courts Act, have been made and have not worked. In Ghaziabad the Family Court sends the couple to the mediation centre in the court complex. A short report that the parties stand by their decision is enough.
• Every issue is settled. Alimony, custody and visitation of the children, return of stridhan and the articles of the marriage, and the withdrawal of every pending case between the two families. The settlement is placed on record with the petition. If a 498A case, now Section 85 BNS, or a maintenance case under Section 144 BNSS is still pending and the settlement does not deal with it, the court will not accept that there is nothing left to cool off about.
• The wait would only prolong the agony. This is the conclusion the first three conditions lead to. The court records that the couple have been apart for long enough, have tried and failed to reconcile, and have nothing left to decide, so the six months serves no purpose.

What the judge asks at Ghaziabad

The Family Court does not decide the waiver on the petition alone. The spouses are present, and the judge asks each of them, separately, the questions that test the conditions. When did you last live together as husband and wife? Where have you each been living since? Has anyone pressured you into this petition? Have you been to mediation, and what happened? Is the settlement in the petition complete, and has the money or the articles mentioned in it actually changed hands? Do you understand that the decree ends the marriage?

The answers are recorded in the statements. Where a spouse hesitates on the date of separation, or the two give different dates, the judge will usually refuse the waiver and let the six months run. That is why the date is fixed with evidence before the petition is filed: the rent agreement of the spouse who moved out, the children's school records showing the address, the complaint or the police application that mentions the separation, the messages in which the separation is discussed.

How the application is moved

Amardeep Singh says the waiver application can be filed one week after the first motion, giving reasons. The chamber prepares it with the joint petition so that both are on the file from the start. The application is a short pleading, supported by affidavits of both spouses, setting out the date of separation with the documents that prove it, the mediation report or the reason mediation is pointless, the settlement and the fact that it has been acted on, and the reason the wait serves no purpose. Where one spouse lives abroad, or has a job that will not allow a second trip, that is said too, with the proof.

Once the first motion statements are recorded and the mediation report is on the file, the application is heard. If it is allowed, the second motion is fixed for a near date, the statements are recorded again, and the decree follows. If it is refused, nothing is lost: the second motion is moved after six months in the ordinary way, which is what would have happened without the application.

When the chamber will not file the application

A waiver application that fails costs a hearing and, more importantly, makes the judge look harder at the rest of the petition. The chamber does not file one where the separation is under eighteen months, where the settlement leaves a pending case untouched, or where one spouse is uncertain. In those cases the honest advice is to file the petition, record the first motion, use the six months to complete the settlement and close the other cases, and come back for the second motion with a clean file. The two motions are explained in their own article.

Things the waiver does not change

• The one year of separation before the petition can be filed at all. That is Section 13B(1) and no court waives it.
• Either spouse's right to withdraw consent before the decree. The waiver shortens the wait; it does not lock anyone in.
• The court's duty under Section 23(1)(bb) to be satisfied that consent was not obtained by force, fraud or undue influence. The questions at both motions serve that duty.
• The eighteen-month outer limit in Section 13B(2). A petition on which the second motion is not moved within eighteen months of the first is treated as abandoned, so a couple who let the file sit lose it.

The waiver is the single most useful tool in a mutual consent divorce in Ghaziabad, and it works only when the file is built for it before the petition is filed. Bring the date of separation and whatever proves it to the first meeting at Chamber 817, and the chamber will tell you the same day whether the application has a real chance.

Read next

• First motion to second motion: what happens at each hearing in the Ghaziabad Family Court
• Documents for a Section 13B petition in Ghaziabad
• NRI mutual consent divorce from abroad

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