• Conversion of divorce case to MCD

Wife W has filed divorce on grounds of cruelty.
Rather than fight it, or ask for RCR, the husband H has also requested divorce as relief, but counterclaimed cruelty on W's part.

I have a few questions in this regard from the learned advocates on these forums:

1. There is a possibility that H and W might agree to MCD instead of drawn out court case. In that situation, are there any advantages/disadvantages of filing a conversion petition, vs withdrawing current case and fresh filing MCD?

2. In Amardeep Singh v Harveen Kaur (civil appeal 11158 OF 2017, arising out of Special Leave Petition (Civil)No. 20184 of 2017) the Supreme Court declared, in judgement dated 12 Sep 2017, that the 6 month cooling off period is "discretionary" and can be waived by family courts. http://sci.gov.in/supremecourt/2017/22782/22782_2017_Judgement_12-Sep-2017.pdf
In order to file a motion of waiving the cooling off period, is it beneficial to file a conversion petition, vs withdrawing current case and fresh filing MCD?

3. What is the process of filing the conversion petition? It would be particularly helpful if you could share the format/template for a conversion petition.

4. Who can file the conversion in this case? W or H? Can the conversion petition be filed through the lawyer(s)? Do both W and H need to be physically present? (W and H live in separate cities, both outside the jurisdiction of the family court where the case has been filed)

5. The original case was filed by W more than 6 months ago. If the family court accepts the conversion petition to change case to MCD, will the 6 months be considered as "cooling off period" already served?

6. Are there any specific judgements that you can share in which family courts have waived the 6 month cooling off period, pursuant to Amardeep Singh v Harveen Kaur (supra)? I have seen a couple of news items, but these don't mention case number or the names of parties, so finding these in databases is extremely hard without any specific information.
Mumbai
https://timesofindia.indiatimes.com/city/mumbai/6-months-cooling-off-period-for-divorce-waived-1st-time-in-mumbai/articleshow/61842049.cms
Indore
https://www.nyoooz.com/news/indore/950987/no-coolingoff-period-couple-gets-divorce-within-month-of-filing-plea/
Asked 8 years ago in Family Law
Religion: Hindu

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8 Answers

1. Even if the conversion is allowed the procedure of MCD will kickstart from where it does i.e you will have to file a petition for MCD. So better withdraw the RCR petition and on the same day file a fresh petition for MCD.

2. By no method of legal interpretation the court can accept the period that has elapsed since the filing of the original case as the cooling off period.

3. There are no judgments by the High Courts wherein they have adjudicated on the validity of the waiver of the cooling off period after Amardeep Singh's case.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

1. Conversion is no more permissible.You will have to withdraw the instant case and file a fresh MCD.

2. In MCD only it is permissible. The waiver of 6 months is not right of the aprties but depends on discretion of the court.

3.No Template is available here. Consult Your advocate for this .

4.Conversion application is to be applied for jointly though outcome of such petitions are very bleak.

5.No,not at all.

6. Family Court decisions are not binding upon another family court.

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

1. There is no disadvantage of getting the case converted from contested to mutual consent before the court.

2. There is no difference in conversion petition or filing fresh MCD. In both scenario you can apply for the waiving off the cooling period.

3. You need to file simple application before the court to convert the matter and make sure both the parties must give their statement before the court regarding the converting the case.

4. You both of you need to enter in settlement agreement, then you can provide that copy to the court. It should be provide by both the parties. There will be one application but there will be two affidavits, one is for husband and other one is for wife.

5. No, that 6 months period will considered as cooling off period.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

1) it is advisable to make conversion application rather than with drawing exiting case and filing fresh case

2) it saves you lot to time and money

3)inorder to file motion of waiving cooling period it is beneficial to file conversion application .

4) we do not provide any formats . your lawyer will do the needful

5)both parties should jointly sign conversion application . presence of both parties is necessary

6)you can apply to court to waive cooling period considering fact that 6 months have passed since filing of divorce petition by wife

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. In any case, conversion of divorce suit to MCD saves time since withdrawal and filing of MCD case thereafter on receipt of the withdrawal order will take little more time.Moreover, both can pray for waiver for cooling period for further 6 months since they are litigating for more the the said period. which the Court might grant

2. This citation can be relied to pray for waiver of the cooling period in MCD petition. While filing for conversion of divorce suit to MCD, waiver of further cooling period of 6 months can be prayed which he court can allow.

3. Just file the Petition jointly signed by both he parties praying for conversion of the instant divorce petition to MCD petition which is annexed therewith and waive the cooling period since both have stayed separately for more than 1 year and the litigation is continuing or a period more han the cooling period.

4. Both shall have to file a joint petition praying for conversion of the divorce suit to MCD case.

5. It will not be automatically so considered. Both the parties shall have to pray for the said waiver of cooling period.

6. There are several such cases where contested divorce suits have been converted to MD petition and in some cases, the cooling period has been waived or shortened against application filed by the litigants.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

Dear Client,

Contested divorce can be converted into MCD, but a little lengthy and cumbersome process. Withdrawing the petition and filing the MCD can be done on the same day.

6 months cooling off period is directory and not mandatory. Well cooling off application is maintainable and may be allowed for mutual benefit of parties, if court find no possibility of survival of marriage.

By filling amendment under sec 6 Rule 17 of CPC. For draft format, have to provide original divorce petition. Fee payable.

Both parties have to file for amendment under mutual consent for conversion. Through Advocate is advisable. Personal presence not required until fresh MCD filed.

"cooling off period" already served - NO,

6 - contact for further assistance.

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

hi,it is advisable and it will be more convinient if you file a fresh MCD by withdrawing the current petition..the petition can be filed either at your city or at her place..the waiving off of cooling period is a matter of court discretion and can be prayed in the MCD petiton

Hemant Chaudhary
Advocate, Gurgaon
4632 Answers
67 Consultations

1. It would be better that both arrive at a consensus and with draw each other's divorce case and then file a MCD so that all the confusions will be cleared especially if there is a MOU on this agreeing for certain conditions for the future too.

2. There is no such thing called as conversion of case from contested divorce to mutual consent.

An amendment to amend the petition to amend the provisions of law and the prayer can be filed but it is the discretion of the court to allow instead you can take leave of court to file a fresh petition under mutual consent by seeking permission to withdraw the current petition.

3. There is no provision in law to file conversion petition.

4. the answer is nobody since there is not provision in law to file any conversion petition.

5. It is the discretion of court, there is no obligation or law on this.

6. You can contact your advocate who will help you to trace out any such judgment suiting to your taste.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

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