• Waiver application for divorce

I am going to file my divorce case in next month march 2014 on mutual consent. I had marry in march 2013. so its 1 year complete my lawyer said it will take six months more to get divorce but one of my relative who is also lawyer he said if you submit waiver application then u can get divorce in one or two months because my husband lives in foreign country. now m confused who is right? and my husband needs to come on second motion or this will resolve by power of attorney.  he wont able to come here as he lives in foreign. and I need divorce as early as possible
Asked 3 years ago in Family Law from delhi, Delhi
Religion: Hindu
your lawyer is correct . 6 months cooling period is required before second motion . you husband presence would be required on second motion . however he can state on affidavit duly affirmed before indian consulate that he has no objection to divorce being granted that all disputes have been settled as per consent terms . he can depose by video conferencing if family court has such facility .
Ajay Sethi
Advocate, Mumbai
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1220 Consultations
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six month cooling period is given by court to enable parties to reconsider the need for divorce . objective being to save the marriage . you have been advised that 6 months waiting period can be waived .court s generally do not waive this  6 months period .
Ajay Sethi
Advocate, Mumbai
23316 Answers
1220 Consultations
5.0 on 5.0
without divorce you cant remarry madam . your marriage during subsistence of earlier marriage would be void . 
you have to furnish particulars in the form as to whether you are married or un married or divorced 


wait for 3 months after divorce is granted as either party can file appeal against the order of divorce .
Ajay Sethi
Advocate, Mumbai
23316 Answers
1220 Consultations
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Your lawyer is right on mark. Do not be tempted to believe any comforting reply, for it may be utterly impractical. The cooling off period is not waived by the courts as it is a last ditch attempt by the court to reconcile the differences of the spouses and save their marriage. For this reason the courts do not waive this period.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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Your husband doe snot need to personally appear in the court. He may depose through video conferencing.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
You cannot remarry till the time you are officially divorced from your current husband. At the time of filling up the registration form you would have to furnish particulars about your marital status. Second marriage cannot take place before the court grants you a divorce, thereby terminating the marital tie between you and your husband. Once the divorce is finalised you can then safely go ahead and remarry as mutual divorce cannot be challenged by your husband if he consents to the second motion.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
Dear Querist
I completely agree with Mr. Sethi
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1)power of attorney has to be attested before indian consulate .it appears this was not done and hence not accepted by courts in india .  either your husband comes to india personally or gives POA to his close family relative . 

2)you need your husband  coperation to get divorce by mutual consent . if he does not attend or gives POA your divorce petition would be dismissed . 

3) you cannot remarry till you r earlier marriage is subsisiting . even change of religion wont help you in this regard .

4) no chances of annullment . it has to be filed within period of one year of marriage under section 12 of HMA . .in your case period  of 1 year has passed
Ajay Sethi
Advocate, Mumbai
23316 Answers
1220 Consultations
5.0 on 5.0
1. Power of Attorney has to be got attested from the Indian consulate in the country where he is residing. Unless and until the power of attorney is attested it cannot be used in court for filing the case. It takes not more than 20 minutes to get it attested from the consulate once the prior appointment has been obtained. 

2. If he is not willing to lend you his cooperation in getting divorce then you may unilaterally file for divorce without waiting any further for him to cooperate. 

3. You cannot remarry unless and until you are divorced. Change of religion also does not permit one to remarry. There is no alternative to a legal termination of marriage characterized by a divorce granted by court. 

4. As per the facts furnished by you, you lived with your husband for merely 4 days after marriage, and more than a year has seemingly passed. In such a scenario an action for annulment will not survive in court.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0

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