1-Yr-Waiting Period For Filing Divorce Petition U/S.29 Of Special Marriage Act Can Be Waived Off Where There Is Exceptional Hardship: Delhi High Court

The Delhi High Court was considering an appeal filed under section 19(1) of the Family Courts Act, read with section 29 of the Special Marriage Act.

Update: 2026-06-02 14:30 GMT

Justice Vivek Chaudhary, Justice Renu Bhatnagar, Delhi High Court

While allowing an application seeking waiver of the statutory period under Section 29 of the Special Marriage Act, 1954, the Delhi High Court has held that the statutory waiting period of 1 year can be waived off if there is exceptional hardship and parties are ad idem for dissolution of marriage.

The High Court was considering an appeal filed under section 19(1) of the Family Courts Act, 1984 read with section 29 of the Special Marriage Act, 1954 challenging the Judgment of the Principal Judge, Family Court, South District, Saket, New Delhi, whereby the application filed by the appellant seeking waiver of the statutory period prescribed under Section 29 read with Section 28(2) of the Act was dismissed.

The Division Bench of Justice Vivek Chaudhary and Justice Renu Bhatnagar held, “There is no child born out of the wedlock and the parties never resided together. The circumstances, as stated by the parties, namely, the severe familial estrangement faced by the appellant, the serious medical condition of his father and the respondent’s apprehension of similar consequences clearly constitutes “exceptional hardship” within the meaning of Section 29 of the Act.”

“In such a situation wherein, the parties are also ad idem for dissolution of marriage, insisting upon adherence to the statutory period of one year would serve no meaningful purpose. On the contrary, it would only result in prolongation of hardship, being contrary to the legislative intent and object of the Act. Thus, such periods can be waived of in exercise of judicial discretion”, it added.

Advocate Khalida Akhtar represented the Petitioner while Advocate Shadaan represented the Respondent.

Factual Background

The appellant and respondent, followers of different faiths, solemnized and registered their marriage under the Special Marriage Act in Delhi. Upon disclosure of the marriage to the family of the appellant husband, his father collapsed from shock and was subsequently diagnosed with liver failure. His entire family had severed ties with him. The respondent, on hearing the circumstances faced by the appellant, was forced to hide her marital status from her family, apprehending occurrence of a similar scenario and fearing non-acceptance fearing disownment in future. The wife’s family was thus unaware of the marriage.

It was an admitted position that the marriage between the parties never commenced in substance as there was no cohabitation, no consummation, and no social or familial acceptance from either side. In these circumstances, the appellant preferred a petition for divorce by mutual consent before the Family court, seeking to waive of the mandatory period of one year after the solemnization of marriage before presenting a petition under section 29 and the 6 months cooling off period before filing the second motion under section 28(2). The said petition was dismissed vide the impugned judgment on the premise that the case did not disclose “exceptional hardship” and that the parties had failed to make efforts towards cohabitation. This led to the filing of the appeal before the High Court.

Reasoning

Referring to the provisions of the Act, the Bench explained that Section 29 of the Act enumerates restriction on divorce petitions being presented, during first year of the marriage by stating that no petition be presented before the court before one year has been passed, however, at the same time, it vests discretionary power on the courts to allow such presentation of divorce petition before one year of the marriage in rare and compelling circumstances, wherein if the petitioner is subject to exceptional hardship or respondent’s conduct reflects exceptional disparity. The Bench stated that Section 28 provides for a six-month cooling-off period, though not explicitly, in cases of divorce sought by way of mutual consent. The provision serves a restorative purpose, rather than a purely procedural one, by providing the parties, an opportunity to reconsider and reconcile the marital relations.

The Bench also held that Section 29 of the Act is pari materia to Section 14 of the Hindu Marriage Act, 1955. The Bench was of the view that in a situation wherein, the parties are also ad idem for dissolution of marriage, insisting upon adherence to the statutory period of one year would serve no meaningful purpose. “Thus, such periods can be waived of in exercise of judicial discretion”, it added.

The Bench clarified that discretion vested in the Courts is intended to be exercised in exceptional circumstances, as in the present case, where the continuation of marriage will only result in prolonging agony to the parties due to unavoidable mental and social distress.

Thus, allowing the appeal as well as the application seeking waiver of the statutory period under Section 29 of special marriage act, 1954 (wrongly mentioned as sec. 14 by parties), the Bench ordered expeditious disposal of the case by the Family Court.