The Amardeep Singh test every family court must apply for waiver.

Two Shots at a Divorce: When a Family Court Forgot the Supreme Court's Rule on the Cooling Period

Amit Jaiswal and Dr. Pankhuri Agarwal wanted out. They had filed a joint petition for divorce by mutual consent under the Hindu Marriage Act, 1955. They had lived apart. They had tried to reconcile. They had failed. So they approached the Family Court at Bareilly with a joint application: waive the mandatory six-month cooling period before the second motion could be filed. The Family Court said no. Just like that. One line. No reasons. No engagement with the law. The husband appealed to the High Court of Judicature at Allahabad. And on 19 September 2023, a Division Bench of Justice Saumitra Dayal Singh and Justice Arun Kumar Singh Deshwal did something simple but devastating for the Family Court: it set the order aside.

The stakes were personal. A couple who had already decided they could not live together was being forced to wait another six months. The Family Court's refusal meant more litigation, more costs, more emotional drain. But the stakes were also legal. If a Family Court could reject a waiver application without applying its mind to the facts or the governing precedent, then the entire scheme of Section 13B(2) — which the Supreme Court had already held to be directory, not mandatory — would become a dead letter.

What the Family Court Actually Said

The order dated 25 July 2023 from the Principal Judge, Family Court, Bareilly was brief. The court observed that the parties should take more time to reconsider their position. That was it. No mention of the joint application. No discussion of the facts pleaded. No reference to the Supreme Court's ruling in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746, which the parties had clearly cited. The Family Court simply rejected the waiver application as if the six-month period were a brick wall that no court could touch.

The husband moved the High Court under Section 19 of the Family Courts Act, 1984. The appeal was numbered First Appeal No. 1033 of 2023.

The Law the Family Court Ignored

The High Court did not need to write a long judgment. The law was already settled. In Amardeep Singh, the Supreme Court had held that the six-month cooling period under Section 13B(2) of the Hindu Marriage Act is directory, not mandatory. The Court laid down four conditions for waiver: (i) the statutory period of separation of one year under Section 13B(1) must already be over; (ii) all reconciliation efforts must have failed; (iii) the parties must have genuinely settled all their differences; and (iv) the waiting period would only prolong their agony. If these conditions were satisfied, the Family Court had the discretion to waive the six-month period.

The Allahabad High Court had itself applied this principle in Vijay Agarwal v. Smt. Suchita Bansal (2023 (8) ADJ 484). That case had clarified something important: the Supreme Court's interpretation of Section 13B(2) in Amardeep Singh was a law-laying exercise, not an exercise of power under Article 142 of the Constitution. This distinction matters. Article 142 powers are case-specific and do not create binding precedent on statutory interpretation. But Amardeep Singh was different. It interpreted the statute itself. That interpretation binds all courts.

The High Court found that the Family Court had acted mechanically. The order suffered from non-application of mind. The court below had not even bothered to examine whether the conditions from Amardeep Singh were satisfied. It had simply said "take more time." That was not a judicial order. That was a rubber stamp.

Why the Family Court's Excuse Didn't Work

The Family Court might have had a reason. Perhaps it thought the parties needed more time to reconcile. Perhaps it believed the six-month period was mandatory. But the High Court was clear: a court cannot reject a joint waiver application without applying its mind to the facts and the law. The parties had cited Amardeep Singh. The Family Court was bound to consider it. The fact that the parties did not produce a copy of the Supreme Court's report was irrelevant. The principle of law was clear. The court below erred in failing to apply it.

The High Court quoted from Vijay Agarwal to drive the point home: the Amardeep Singh ruling was a law-laying exercise. It was not an Article 142 order that could be distinguished on facts. Every Family Court in India must apply it.

THE TEST: When a joint application to waive the six-month cooling period under Section 13B(2) is filed, the Family Court must examine four things: (1) Has the one-year separation period under Section 13B(1) been completed? (2) Have all reconciliation efforts failed? (3) Have the parties genuinely settled all differences? (4) Would the waiting period only prolong agony? If the answer to all four is yes, the court must waive the period. It cannot say "take more time."

What the High Court Did

The Division Bench set aside the order dated 25 July 2023. It remanded the matter to the Family Court at Bareilly with a direction to pass a fresh order in accordance with the law laid down in Amardeep Singh and the observations made in the judgment. The appeal was disposed of.

The High Court did not itself decide whether the waiver should be granted. That was for the Family Court to do. But the High Court made it clear: the Family Court must apply its mind. It must examine the facts. It must follow the precedent. It cannot reject a joint application with a one-line observation.

Why This Matters for Practitioners

This judgment is a reminder that the six-month cooling period under Section 13B(2) is not a mandatory waiting period that no court can touch. It is a directory provision. The Family Court has discretion. But that discretion must be exercised judicially, not mechanically.

For advocates handling mutual consent divorce cases, the lesson is simple: when you file a joint application for waiver of the cooling period, cite Amardeep Singh and Vijay Agarwal. Attach a copy of the judgment. Plead the four conditions clearly. If the Family Court rejects the application without engaging with the precedent, you have a strong ground for appeal.

For Family Courts, the message is equally clear: you cannot treat the six-month period as a mandatory bar. You must examine the facts. You must apply the law. If you do not, the High Court will set your order aside.

For the couple in this case, the judgment means a second chance. The Family Court at Bareilly will now have to pass a fresh order. It will have to consider whether the conditions from Amardeep Singh are satisfied. If they are, the waiver must be granted. The six-month wait will be over.

The Bottom Line

When a Family Court rejects a joint application to waive the six-month cooling period under Section 13B(2) without applying its mind to the facts and without engaging with the governing precedent from Amardeep Singh v. Harveen Kaur, the order is mechanical and liable to be set aside on appeal. The six-month period is directory, not mandatory. The Family Court must exercise its discretion judicially. If it does not, the High Court will intervene.