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Neeraj Kaushal (Advocate )     08 February 2021

13B(2) HMA

I need a format of application for waiving out cooling off period in divorce petition.

 4 Replies

Adv Deepak Joshi +917017821512 (Advocate)     08 February 2021

are you advocate or party ?

Kevin Moses Paul   08 February 2021

Recently, the SC [Supreme Court of India] or the Apex Court created a new perspective in regard to proceedings of divorce cases under HMA, 1955.

The issue was in regard to contradict the credibility that the waiting period (or cooling period) given under Hindu Marriage Act for divorces with mutual consent which is a mandatory periods.

Deciding the issue, the Supreme Court of India held that it had no discretionary power to override the explicit provision of the Hindu Marriage Act or any other statute.

The court ruled that the clause of the Hindu Marriage Act allowing a cooling-off time of six months is Not Compulsory but just Directory.

In result of this, the family court in which divorce proceedings are going on can in extra-ordinary cases, waive off this time if other requirements were met (which includes the fact - parties have been apart for longer that 18 months), and thus all counseling and conciliation attempts to reunite the couple have failed and all issues have been resolve, even in regard of alimony.
In Section 13-B of the Hindu Marriage Act, 1955, the couples in marriage seek divorce by mutual consent through filing a petition in the court through a divorce lawyer. The Consensual Divorce states that both partners agree with peaceful separation. The dissolution of marriage through mutual consent is a straightforward method to dissolve it legally.

Section 13-B(2) of the Hindu Marriage Act, 1955 states that for a statutory interregnum understanding, a cooling period of six months between the first and the last motion for divorce by consensual consent to explore the possibility of settlement and cohabitation.

That statutory period is termed as the "Cooling Period".

In case one wants to waive off the provisional waiting period (i.e 6 months u/s 13B(2)), the court needs to take note of few concepts before making a decision:-

# Statutory period (6 months) as per section 13B(2) along with the statutory period (1 year) in section 13B(1) of separation of parties is over already.

# Efforts in Mediation/Conciliation in terms of Order XXXII(A) Rule 3 of CPC; Section 23(2) of Act and Section 9 of Family Courts Act have been in vain and there's no chance for success.

# Parties have settled their differences genuinely in regard to alimony, custody of child or other issues, and thus waiting period will prolong their agony.

In these situations, one week after the first petition, the waiver application can be submitted, providing reasons for the waiver request. The Court may exercise its control regarding the second-period waiver.

Here is the link for a format for the application to waive off the cooling period -
2 Like

Neeraj Kaushal (Advocate )     08 February 2021

any body can send

G.L.N. Prasad (Retired employee.)     09 February 2021

You can never expect better guidance anywhere else than given than what was already provided by Mr.K.A. Paul, at least send a like to him for all the pains he has taken for your single sentence query and he has provided a link to the format you are in need of with more details.

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