The minimum time period is the shortest amount of time that must pass before a divorce case can be filed, and it is an essential consideration for those seeking to end their marriage.
I am Supriya Gill, a lawyer and this article will provide an overview of the minimum time period required to file for divorce in India, taking into account the provisions of the Hindu Marriage Act, 1955.
As per Hindu Marriage Act, 1955 you cannot file for divorce within one year of marriage. After one year of marriage, you can file for divorce. But it is also mentioned in the Act that in some circumstances the Court can consider the Divorce petition even before one year.
A divorce petition can be filed even within a week after marriage if there is extreme hardship which has to be pleaded specifically. In the absence of extreme hardship, a petition for divorce is not maintainable before a year from marriage. What constitutes extreme hardship depends upon the peculiar facts and circumstances of the case.
Legal Provisions governing the time required to file for divorce after marriage
Section 14 of the Hindu Marriage Act, 1955
According to Section 14 of the Hindu Marriage Act, no petition of divorce can be presented before the completion of one year of marriage. But many times the circumstances become such that there is no possibility for the parties to wait for one year,
in such circumstances the common man also feels that the marriage cannot be saved even after the completion of one year, so for such a situation it is also mentioned in the Proviso of Section 14 that in some circumstances the Court can consider the Divorce petition even before one year.
It is clear from the language of Section 14 of HMA that any Court before the completion of one year of marriage cannot grant the divorce petition.
But further in the Proviso of Section 14, the situation is mentioned when a divorce petition can be presented before the completion of one year of marriage. If the circumstances are such that the petitioner cannot be expected to file a divorce petition after completion of a waiting period of one year after marriage. Considering the circumstances of the matter, the Court will allow the filing of a Divorce petition before one year.
For this, the Court must see that the party filing the petition has actual grounds on which the petition is based. If the grounds do not seem real to the Court or the party has written the wrong grounds in order to get an early divorce, then the petition can also be rejected.
As another option, the Court does not reject the petition but issues a decree of divorce, then gives an order along with it that the decree of divorce will be implemented only after one year of marriage.
The Family Court or District Court in which the divorce petition is presented is competent to grant relaxation in the period of one year looking at the facts of the case.
Time required to file for Mutual Consent divorce after marriage
Section 13B of the HMA lays down the provision that the parties are living separately for at least one year before filing the divorce petition and at least six months which can be up to eighteen months after the presentation of the petition and, the Court can issue a decree of divorce with mutual consent.
There is no legal provision to waive off the required one year of separation of husband and wife, only the Supreme Court has the Constitutional power under Article 142 that it can give relaxation in this time period.
The provisions of Section 14 will not be applicable in matters of Divorce by mutual consent, so this petition cannot be presented before one year.
However, where the parties have lived separately for more than one and a half years, the Court can waive the cooling period of six months.
But only the Hon’ble Supreme Court can waive the condition of one year.
For mutual consent divorce, one year of separation between husband and wife must be there.
To read the detailed provision of Section 13B, click here.
Case law on time required to file for mutual consent divorce after marriage
Amit Kumar vs Suman Beniwal 2021 SC
Supreme Court held that the provisions of Sections 14 and 13 B are different. In Section 13(B) i.e, the provisions made for divorce by mutual consent, the requirement has been separately stated that the parties have lived separately for more than one year. There is no such waiver in Section 13(B) as given under 14.
Can you file for divorce before the expiry of one year of marriage?
Yes, you can file for divorce before the expiry of the waiting period of one year after marriage subject to some conditions laid down by Proviso of Section 14 of the HMA.
It is at the discretion of the Court to accept or reject such a divorce petition. The strict provisions of law regarding divorce in India are to protect the sacred union of marriage.
Conditions for getting a divorce before one year of marriage
There are some conditions in the Hindu Marriage Act, 1955 which need to be fulfilled before filing a divorce petition before one year of marriage:
- Exceptional hardship of the petitioner
- Exceptional depravity on the respondent’s part
- The interest of the children
- Possibility of reconciliation
Examples of exceptional cases:
- Heinous matrimonial or criminal offences
- Pregnancy before marriage
- Involvement in prostitution
- Commission of adultery as well as cruelty on the wife
- Extreme beating
- Defamation
To read the detailed provision of Section 14, click here.
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