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RAM (engg)     04 June 2013

Six months cooling period in mutual consent

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I have filed a divorce petition under section 13 (1) (ia) of the hindu marriage act, in may 2010, now decided to file under 13-b as mutual consent.

now cooling period six months are needed?

 

Even I shown the Supreme court of India judgement of case no CIVIL APPEAL NO.5946 OF 2012, (Arising out of SLP(C)No.21084 of 2012). that states that no need of six months cooling period. but my lawyer and some of the others are stating that it is not possible to get in family court.

is it ture? or is it possible to divorce with out six months cooling period?

please explain and give a proper direction to this six months exemption

raam



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 8 Replies

Adv Archana Deshmukh (Practicing Advocate)     04 June 2013

Your lawyer is correct. The said judgment the SC have exercised its powers under Art. 142 of the constitution which are not available to the lower judiciary. At present the 6 months waiting period is to be mandatorily followed and the courts do not have the discretion to waive it. Only the SC can do so under Art. 142.

RAM (engg)     04 June 2013

thank you for your reply Adv. Archana,    If the family court denies how can we go to supreme court bypassing the high court

Adv Archana Deshmukh (Practicing Advocate)     04 June 2013

You cannot bypass the high court. Firstly you will have to challange the decision of the family court in the high court and when the high court will also reject your petition then only you can approach the SC.

Anjuru Chandra Sekhar (Advocate )     05 June 2013

Family court will not give any order against joint petition filed under S.13(B) unless one of the petitioners backtracks and refuses to have MCD during second motion.  This is actually not six months cooling period.  The actual time given is minimum six months and maximum eighteen months.  In other words, total of eighteen months time is there for both of you to move second motion. People call it six months cooling period because immediately after six months, one or the other will move for second motion.

RAM (engg)     05 June 2013

we already crossed 3 years so this MCD can be treated as second motion

Adv Archana Deshmukh (Practicing Advocate)     05 June 2013

No it cannot be treated as second motion if you have filed MCD seperately without converting the original into MCD.

Anjuru Chandra Sekhar (Advocate )     05 June 2013

MCD is joint petition filed by both of you. There cannot be two petitions on same cause, seeking same relief.  Hence the contested divorce petition should have been converted into MCD or withdrawn entirely.  From the date of filing of joint petition for MCD you have to wait for minimum six months (maximum eighteen months).  That means, from 6-18 months from the date of filing of joint petition for MCD you can move second motion anyday.  Three years period that you are mentioning may be either period of separation or the period from the date of filing of contested divorce.  That is not relevant for MCD. 

Raj (fr)     05 November 2015

Dear Ld.Friends,

If contested petition u/s 13 HMA is conveter to MCD 13B after agreement done at HC on comprimise can the 6 months cooling period be wavedoff witout approaching to HC or SC.

Please suggest.

Rgds,

Raj 


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