Divorce for Hindus is governed by Section 13 (fault grounds) and Section 13B (mutual consent, with a 6-18 month cooling-off period) of the Hindu Marriage Act, 1955, while interfaith and civil marriages fall under the Special Marriage Act, 1954 -- and since a landmark 2023 Constitution Bench ruling, the Supreme Court alone can waive the cooling-off period and grant a direct divorce for irretrievable breakdown of marriage.
Grounds for divorce and mutual consent under the Hindu Marriage Act
Section 13 of the Hindu Marriage Act, 1955 lists fault-based grounds for divorce, including adultery,
cruelty, desertion for two or more years, conversion to another religion, unsoundness of mind, communicable
venereal disease, renunciation of the world, and presumption of death after seven years of not being heard of
as alive; Section 13(2) adds further grounds available specifically to a wife. Section 13B provides for
divorce by mutual consent, requiring the couple to have lived separately for at least a year, to agree the
marriage has broken down, and to observe a cooling-off period of 6 to 18 months between the first and second
motions before the court grants the decree.
Shilpa Sailesh v. Varun Sreenivasan (2023) -- the Supreme Court’s direct-divorce power
On 1 May 2023, a five-judge Constitution Bench of the Supreme Court held that the Supreme Court -- and only
the Supreme Court, exercising its unique Article 142 “complete justice” power -- can directly grant
a divorce on the ground of irretrievable breakdown of marriage, and in doing so can waive the mandatory 6-18
month cooling-off period under Section 13B, even bypassing pending Family Court proceedings. This power is not
available to High Courts or Family Courts, and the Supreme Court stressed it is an extraordinary, discretionary
remedy exercised with restraint. For NRIs facing jurisdictional or cross-border complications in matrimonial
litigation, this has become a relevant, if resource-intensive, route to seek an expedited mutual-consent
divorce directly from the Supreme Court.
The Special Marriage Act -- civil and interfaith marriages
The Special Marriage Act, 1954 governs civil marriages performed outside religious personal law, including
interfaith and inter-caste marriages, and marriages where one party is a foreign national or an NRI marrying
under civil rather than religious ceremony. It requires a 30-day public notice period at the Marriage
Officer’s office before solemnization -- a requirement that has drawn criticism over the privacy
implications of the notice being publicly displayed, but which remains current law.
Can a Family Court waive the 6-month cooling-off period for a mutual consent divorce?
Generally no -- the power to waive the Section 13B cooling-off period and grant a direct divorce for
irretrievable breakdown of marriage, established in Shilpa Sailesh v. Varun Sreenivasan (2023), is exercised
by the Supreme Court alone under its Article 142 power; High Courts and Family Courts do not have this same
power to bypass the statutory waiting period.
Is there a public notice requirement before marrying under the Special Marriage Act?
Yes -- the Special Marriage Act, 1954 requires a 30-day public notice period at the Marriage Officer’s
office before the marriage can be solemnized, during which objections can be raised; this remains current law
despite ongoing criticism of its privacy implications for interfaith and NRI couples.
Does an NRI marrying under the Hindu Marriage Act need to also register under the Special Marriage Act?
No -- a Hindu marriage solemnized under the Hindu Marriage Act, 1955 is separately valid and does not need
to also be performed under the Special Marriage Act, 1954, which is generally used instead for interfaith or
civil marriages not covered by a specific personal law.
