Can the 6-Month Waiting Period in Mutual Consent Divorce be Waived for NRIs?

One of the most common frustrations for NRI couples seeking a mutual consent divorce in India is the mandatory 6-month waiting period between the first and second motion. For couples who have already been living separately for years — often in different countries — this cooling-off period can feel unnecessarily prolonged. The good news is that Indian courts have the discretion to waive it.

What is the 6-Month Cooling Period?

Under Section 13B of the Hindu Marriage Act, 1955 (and equivalent provisions under other personal laws), a couple seeking mutual consent divorce must file a joint petition (first motion) and then wait a minimum of 6 months before filing the second motion. This period is intended to give the couple time to reconsider and possibly reconcile.

The total period between first and second motion cannot exceed 18 months — after which the petition lapses and must be refiled.

The Supreme Court's Position on Waiver

The landmark judgment in Amardeep Singh v. Harveen Kaur (2017) settled the question definitively. The Supreme Court held that the 6-month period under Section 13B(2) is directory, not mandatory — meaning courts have discretion to waive it when the facts of the case justify doing so.

The Court laid down specific conditions for waiver:

• All efforts at mediation and reconciliation have failed
• The marriage has irretrievably broken down
• The parties have been living separately for a sufficiently long period
• There is no likelihood of the parties resuming cohabitation
• Both parties genuinely and voluntarily consent to the divorce
• Waiting out the period would only prolong the agony of both parties

Why NRI Couples Particularly Benefit from Waiver

NRI couples are often exceptionally well-placed to seek waiver of the cooling period because:

• They have frequently been living in different countries for years — well beyond the 1-year separation requirement
• Reconciliation is practically impossible given the geographical distance and the decision to live in separate countries
• The logistical and financial burden of making two separate trips to India (for first and second motion) is substantial
• The waiting period serves no useful purpose when both parties are firm in their decision

Courts are increasingly sympathetic to NRI circumstances in waiver applications, particularly where the couple has demonstrably lived apart for extended periods.

How to Apply for Waiver

The waiver is not automatic — it must be specifically applied for. The procedure is:

1. File the first motion joint petition in the appropriate Family Court
2. Along with or shortly after filing, submit an application specifically seeking waiver of the 6-month period
3. Support the application with evidence of long separation, NRI status, absence of prospect of reconciliation, and both parties' firm consent
4. The court considers the application and, if satisfied, may exercise its discretion to waive the waiting period
5. If granted, the second motion can be filed almost immediately, and the decree follows shortly after

What Happens if Waiver is Refused?

If the court declines to waive the period, the couple simply proceeds with the standard 6-month wait. The first motion remains valid and the second motion is filed after the period expires (and before 18 months). The divorce process continues — it is not derailed by a refused waiver application.

Can One Party Withdraw Consent During the Waiting Period?

Yes. Either party can withdraw consent at any point before the second motion is filed and recorded by the court. This is why the waiver process is important — a shorter waiting period reduces the window for withdrawal, particularly in cases where one party may be under pressure or may change their mind.