IMPORTANT POINT
Divorce by mutual consent – Waiver of statutory period is permissible where parties are ad idem for dissolution of marriage.

JUDGMENT

The present appeal under section 19(1) of the Family Courts Act, 1984 read with section 29 of the Special Marriage Act, 1954 (“the Act”) assails the Judgment dated 15.10.2025 passed by the learned 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 has been dismissed, and consequently, the petition under Section 28 of the Act has been rejected as not maintainable.

2. Briefly stated, the appellant and respondent are followers of different faiths and have solemnized and registered their marriage on 25.08.2025 under the Act in Delhi. Upon disclosure of the marriage to the family of the appellant, his father collapsed from shock and was subsequently diagnosed with liver failure, and his entire family has severed ties with him.

3. 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 non-acceptance fearing disownment in future. Hence, till date the respondent’s family is unaware of the marriage.

4. It is an admitted position that the marriage between the parties never commenced in substance as there is no cohabitation, no consummation, and no social or familial acceptance from either side.

5. 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 of the Act and the 6 months cooling off period before filing the second motion under section 28(2) of Act. The said petition was dismissed vide the impugned judgment dated 15.10.2025, leading to the filing of the present appeal.

6. By way of the impugned judgment dated 15.10.2025, the learned Family Court has dismissed the appellants’ application seeking waiver of the statutory period prescribed under Section 29 of the Act and consequently rejected the petition for divorce by mutual consent as not maintainable, on the erroneous premise that the case did not disclose “exceptional hardship” and that the parties had failed to make efforts towards cohabitation.

7. The impugned judgment has been assailed by the appellant on the ground that the learned Family Court has failed to exercise the discretion vested under Section 29 of Act in a judicious manner, and has instead adopted a hyper-technical approach by observing that the appellant failed to give an attempt to save the marriage which, on admitted facts, never commenced, was never consummated, and stood unworkable from inception.

8. It is submitted that the finding regarding absence of “exceptional hardship” is perverse, ignoring the severe social, psychological, and familial distress faced by the parties, and is further vitiated by speculative observations on medical issues beyond judicial domain. Reliance has been placed on Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 and Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270, wherein it has been recognized that statutory waiting periods are directory and liable to be waived where continuation of marriage serves no purpose.

9. We have heard the learned counsel for the parties and have perused the material on record.

10. The principal question that arises for consideration is whether the statutory period, as described under the Act, can be waived off and the parties be permitted to obtain a decree of divorce by way of mutual consent.

11. 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 ci