Shahbaz Khan vs Komal Shresth

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 23.03.2026
Pronounced on: 29.05.2026

+ MAT.APP.(F.C.) 60/2026 & CM APPL. 11752/2026
SHAHBAZ KHAN .....Appellant
Through: Ms. Khalida Akhtar, Mr.
Abdullah Akhtar and Mr. Maaz
Akhtar, Advs.

versus

KOMAL SHRESTH .....Respondent
Through: Mr. Shadaan, Advocate along
with respondent.
CORAM:
HON'BLE MR. JUSTICE VIVEK CHAUDHARY
HON'BLE MS. JUSTICE RENU BHATNAGAR
J U D G M E N T
1. 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.
Signature Not Verified
Signed By:NEHA
Signing Date:29.05.2026
16:12:25
MAT.APP.(F.C.) 60/2026 Page 1 of 9

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.
Signature Not Verified
Signed By:NEHA
Signing Date:29.05.2026
16:12:25
MAT.APP.(F.C.) 60/2026 Page 2 of 9

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.
Signature Not Verified
Signed By:NEHA
Signing Date:29.05.2026
16:12:25
MAT.APP.(F.C.) 60/2026 Page 3 of 9

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 circumstances, wherein if the
petitioner is subject to exceptional hardship or respondent’s conduct
reflects exceptional disparity . The legislative intent behind the said
provision is to ordinarily provide for a minimum period of stability
and the discretionary powers vested on the courts are meant to be
exercised cautiously and only in extraordinary cases.
12. Similarly, Section 28 of the Act 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.
Signature Not Verified
Signed By:NEHA
Signing Date:29.05.2026
16:12:25
MAT.APP.(F.C.) 60/2026 Page 4 of 9

13. A conjoint reading of the aforesaid provisions reveals that the
legislative intent is to protect the marriage as an institution by
enumerating safeguards in form of the statutory timelines.
Furthermore, the said provisions also give discretionary powers to the
courts of be exercised in appropriate cases on the basis of peculiar
facts and circumstances.
14. At this juncture, it is pertinent to note that Section 29 of the Act
is pari materia to Section 14 of the Hindu Marriage Act, 1955 and the
full bench of this court, recently, in case of Shiksha Kumari v.
Santosh Kumar , 2025:DHC:11467-FB while analyzing the statutory
timeline prescribed under section 13B (1) of the HMA for the
presentation of a petition for divorce by mutual consent under Hindu
Marriage act has held by as below:
“ 57. We may summarise our conclusions in
response to the questions posed, as follows:
57.1. The statutory period of 01-year
prescribed under section 13B(1) of the HMA
as a pre-requisite for presenting the first
motion, can be waived, by applying the
proviso to section 14(1) of the HMA ;
57.2. The waiver of the 01-year separation
period under section 13B(1) of the HMA does
not preclude waiver of the 06-month cooling-
off period for filing the second motion under
section 13B(2); and waiver of the 01-year
period under section 13B(1), and the 06-month
period under section 13B(2), are to be
considered independently of each other;
Signature Not Verified
Signed By:NEHA
Signing Date:29.05.2026
16:12:25
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57.3. Where the court is satisfied that the 01-
year period under section 13B(1) and the 06-
month period under section 13B(2) of the
HMA deserve to be waived, the court is not
legally mandated to defer the date from which
the divorce decree would take effect, and such
decree may be made effective forthwith;
57.4. Such waiver is not to be granted merely
for the asking but only upon the court being
satisfied that circumstances of ‘exceptional
hardship to the petitioner’ and/or
‘exceptional depravity on the part of the
respondent’ exist, while also testing the case
on the anvil of the considerations set-out in
Pooja Gupta ;
57.5. Waiver, as above, can be granted both by
the Family Court as well as the High Court;
and
57.6. As contemplated in the proviso to section
14(1) of the HMA, where a court finds that the
waiver of the 01-year period under section
13B(1) has been obtained by
misrepresentation or concealment, the court
may defer the date on which the divorce would
take effect, as may be considered appropriate;
or may dismiss the divorce petition, at
whichever stage it is pending, without
prejudice to the right of the parties to present
a fresh petition under section 13B(1) of the
HMA after expiration of the 01-year period, on
the same or substantially the same facts as
may have been pleaded in the petition so
dismissed.”
(emphasis added)

15. In the aforesaid backdrop, as the Section 28 & 29 of the Act is
pari materia to Section 13(B) & 14 of the Hindu Marriage Act, 1955,
Signature Not Verified
Signed By:NEHA
Signing Date:29.05.2026
16:12:25
MAT.APP.(F.C.) 60/2026 Page 6 of 9

the similar principles with respect to the prescribed statutory timeline
will apply.
16. Therefore, as per Section 14 HMA, this Court is required to
examine whether the present case discloses “exceptional hardship”
and whether there exists any reasonable probability of reconciliation
between the parties, it is an admitted position that the marriage
between the parties was purely notional, without any cohabitation,
consummation, or social and familial recognition. 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.
17. 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.
18. In view of the foregoing, this Court is of the considered opinion
that the Impugned Judgment cannot be sustained, having being
proceeded on restrictive and hyper-technical interpretation of the
Signature Not Verified
Signed By:NEHA
Signing Date:29.05.2026
16:12:25
MAT.APP.(F.C.) 60/2026 Page 7 of 9

statutory framework under the Act. The 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.
19. Accordingly, the present appeal stands allowed and the
Impugned Judgment dated 15.10.2025 is, hereby, set aside. The
application seeking waiver of the statutory period under Section 29 of
special marriage act, 1954 (wrongly mentioned as sec. 14 by parties)
is allowed. Consequently, the petition for divorce filed under section
28(1) of the SMA by way of mutual consent, as filed by the parties, is
allowed to be entertained after waiving of statutory period of one year
separation in view of exceptional circumstances as mentioned in
Section 29 of SMA.
20. The matter is remanded back to the learned Family Court with
the directions to proceed with the first motion petition under Section
28 (1) of the SMA expeditiously and pass an appropriate order in
accordance with law, without insisting upon the statutory waiting
period of separation of 1 year.
21. We further hope and trust that as soon as the parties file second
motion petition u/s 28(2) of the SMA, the learned Family Court shall
also decide the same expeditiously, in the light of the directions
passed by this court in Shiksha Kumari (supra) as well as the law laid
Signature Not Verified
Signed By:NEHA
Signing Date:29.05.2026
16:12:25
MAT.APP.(F.C.) 60/2026 Page 8 of 9

down by the Hon’ble Supreme Court in Amardeep Singh (supra) &
Amit Kumar (supra), keeping in view the exceptional circumstances
enumerated above, by us in this judgment.
22. The present appeal, along with pending application(s), if any,
stands disposed of in the aforesaid terms.


VIVEK CHAUDHARY
(JUDGE)



RENU BHATNAGAR
(JUDGE)
MAY 29, 2026/kp/kz
Signature Not Verified
Signed By:NEHA
Signing Date:29.05.2026
16:12:25
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