Delhi HC Waives One-Year Bar for Mutual Consent Divorce Under Special Marriage Act Where Marriage Was Never Consummated
A Delhi High Court Division Bench set aside a Family Court order that refused to waive the one-year waiting period under Section 29 of the Special Marriage Act, 1954, finding the marriage purely notional and the hardship exceptional.
A Division Bench of the Delhi High Court, comprising Justice Vivek Chaudhary and Justice Renu Bhatnagar, has allowed a matrimonial appeal challenging a Family Court order that dismissed an application for waiver of the statutory one-year waiting period under Section 29 of the Special Marriage Act, 1954. The Family Court had also rejected the underlying petition for divorce by mutual consent under Section 28 of the Act as not maintainable. The High Court found that the marriage between the parties — solemnised on 25 August 2025 — was never consummated, never cohabited, and received no social or familial acceptance from either side, making insistence on the statutory period contrary to the legislative intent of the Act.
The Dispute Before the High Court
The appellant, Shahbaz Khan, and the respondent, Komal Shresth, are followers of different faiths. They solemnised and registered their marriage on 25 August 2025 under the Special Marriage Act, 1954, in Delhi. When the marriage was disclosed to the appellant's family, his father collapsed from shock and was subsequently diagnosed with liver failure. The appellant's entire family severed ties with him.
The respondent, upon learning of the appellant's circumstances, chose to conceal the marriage from her own family, apprehending a similar reaction and possible disownment. As of the date of the appeal, the respondent's family remained unaware of the marriage.
It was an admitted position before the court that the marriage never commenced in substance: there was no cohabitation, no consummation, and no social or familial recognition from either side. Both parties sought dissolution by mutual consent.
The appellant filed a petition before the Principal Judge, Family Court, South District, Saket, New Delhi, seeking waiver of the mandatory one-year period before presenting a divorce petition under Section 29 of the Act, and also waiver of the six-month cooling-off period before filing the second motion under Section 28(2). The Family Court dismissed the application by its judgment dated 15 October 2025, holding that the case did not disclose “exceptional hardship” and that the parties had failed to make efforts towards cohabitation. The petition for divorce by mutual consent was consequently rejected as not maintainable. This led to the filing of MAT.APP.(F.C.) 60/2026 before the High Court.
The Statutory Framework: Sections 28 and 29 of the Special Marriage Act
Section 29 of the Special Marriage Act, 1954 restricts the presentation of divorce petitions during the first year of marriage. It provides that no petition shall be presented before one year has elapsed from the date of solemnisation. However, it vests discretionary power in courts to permit such presentation before the one-year mark in rare and compelling circumstances — specifically, where the petitioner is subject to exceptional hardship or the respondent's conduct reflects exceptional depravity.
Section 28 of the Act provides for divorce by mutual consent. It incorporates a six-month cooling-off period between the first and second motions, serving a restorative rather than a purely procedural purpose, giving parties an opportunity to reconsider and reconcile.
The Division Bench read these provisions together and held that the legislative intent is to protect marriage as an institution through statutory timelines, while simultaneously vesting courts with discretion to be exercised in appropriate cases based on peculiar facts.
Parity With the Hindu Marriage Act and the Full Bench Ruling in Shiksha Kumari
The High Court observed that Section 29 of the Special Marriage Act is pari materia to Section 14 of the Hindu Marriage Act, 1955, and that Section 28 of the Act is pari materia to Section 13B of the HMA. On that basis, the principles governing waiver of statutory timelines under the HMA apply equally to the Special Marriage Act.
The Bench relied on a recent Full Bench judgment of the Delhi High Court in Shiksha Kumari v. Santosh Kumar, 2025:DHC:11467-FB, which had analysed the one-year period under Section 13B(1) of the HMA and the six-month cooling-off period under Section 13B(2). The Full Bench had held, among other things, that the one-year statutory period under Section 13B(1) can be waived by applying the proviso to Section 14(1) of the HMA; that waiver of the one-year period does not preclude waiver of the six-month cooling-off period, and the two are to be considered independently; that where both periods deserve to be waived, the court is not legally mandated to defer the date from which the divorce decree takes effect; and that such waiver is not to be granted merely for the asking but only upon the court being satisfied that circumstances of exceptional hardship or exceptional depravity exist.
The Division Bench applied these conclusions directly to the present case, given the pari materia character of the provisions.
How the Bench Reasoned on Exceptional Hardship
The court examined whether the admitted facts constituted “exceptional hardship” within the meaning of Section 29 of the Act. It found that the marriage was purely notional: no cohabitation, no consummation, no child born out of the wedlock, and no shared residence at any point. The parties never resided together.
The severe familial estrangement faced by the appellant, the serious medical condition of his father following disclosure of the marriage, and the respondent's apprehension of similar consequences leading her to conceal the marriage from her own family were, in the court's view, circumstances that clearly constituted exceptional hardship.
The Bench rejected the Family Court's reasoning that the parties had failed to attempt cohabitation. It held that this observation was “hyper-technical” because, on admitted facts, the marriage had never commenced, was never consummated, and stood unworkable from inception. Requiring an attempt to save a marriage that never began in substance was, in the court's assessment, a restrictive and erroneous application of the discretion vested under Section 29.
The court also found the Family Court's finding on the absence of exceptional hardship to be perverse, noting that it ignored the severe social, psychological, and familial distress faced by both parties, and was further vitiated by speculative observations on medical issues beyond judicial domain.
The Bench held that insisting on adherence to the statutory one-year period in such circumstances would serve no meaningful purpose and would only prolong hardship, contrary to the legislative intent and object of the Act. Both parties were ad idem for dissolution.
Reliance on Supreme Court Precedents
The appellant had placed reliance on Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, and Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270, in which the Supreme Court had recognised that statutory waiting periods in matrimonial matters are directory and liable to be waived where continuation of the marriage serves no purpose. The Division Bench directed the Family Court to keep these precedents in view when deciding the second motion petition under Section 28(2) of the Act.
Order
The Division Bench allowed the appeal and set aside the Family Court's judgment dated 15 October 2025. The application seeking waiver of the statutory period under Section 29 of the Special Marriage Act, 1954 was allowed. The petition for divorce by mutual consent under Section 28(1) of the Act was permitted to be entertained after waiving the one-year statutory period, in view of the exceptional circumstances.
The matter was remanded to the Family Court with directions to proceed with the first motion petition under Section 28(1) of the Act expeditiously and pass an appropriate order in accordance with law, without insisting upon the statutory waiting period of one year.
The Bench further directed that when the parties file the second motion petition under Section 28(2) of the Act, the Family Court shall decide it expeditiously in the light of the directions in Shiksha Kumari and the law laid down by the Supreme Court in Amardeep Singh and Amit Kumar, keeping in view the exceptional circumstances recorded in the judgment.
The appeal, along with pending applications, was disposed of accordingly on 29 May 2026.