• Can 6 months cool off period waive off if all things are resolved in case of mutual divorce?

I got married in April 2015 and officially separated in January 2017 (which is in court records also) We have no kids. In August 2016 We started the procedures for Mutual Divorce where we were presented in front of the counselor. After that counselor singed the papers where we were permitted to go for the further procedures. In September 2016 both of us visited the court again and all my personal stuff was handed over to me in presence of the lawyer. Than happened one session where our lawyer put the case in front of the judge and signed some papers. Now the first motion is in February/March 2018 which is after completing the 1 year of separation. I asked our lawyer to file one application also on the first motion where we can request for waiving off 6 months cool off period. But all he said that it depends on the judge and we cannot do anything about it. All the procedure is taken care by my husband's lawyer and I'm worried if he is doing all the things in right manner.
Here I need guidance, if I can get divorce without waiting 6 month cool off period as I read in newspaper that Supreme Court waived off the 6 months cool off period if all things related to Alimony, Child, Property and other got resolved. Kindly help.
Asked 6 months ago in Family Law from New Delhi, Delhi
Religion: Hindu
Hello,

It was very recently that the SC passed a judgement that the 6 months cooling off period can be waived off and very recently a family court at Bombay implemented the same and waived off the mandatory cooling off period. 

You may also try the same and move an application in the light of the judgment of the Supreme Court. 

Regards 
Anilesh Tewari
Advocate, New Delhi
9487 Answers
124 Consultations

5.0 on 5.0

Hi, the waiving of cooling period totally depends upon the discretion of judge .. The court may upon considering the grounds waive off such period , but it cannot be predicted whether the court will grant relief or not
Hemant Chaudhary
Advocate, Gurgaon
3327 Answers
15 Consultations

4.9 on 5.0

the SC has held The court ruled that the stipulation under the Hindu Marriage Act for a six-month wait could be done away with if all efforts for mediation and conciliation intended to reunite the parties had failed.

2)  The waiving off can be considered if the parties had already lived separately for at least a year. In such situations, the court could take a view that delay in proceedings will only prolong subsequent resettlement.

3)
"The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled," it said.

4) apply to family court for waiving off cooling period 
Ajay Sethi
Advocate, Mumbai
47878 Answers
2841 Consultations

5.0 on 5.0

Yes you can ask the court to waive off 6 Months cooling period 
Saransh Tripathi
Advocate, Delhi
1 Answer

4.0 on 5.0

It is a possibility in case the court is satisfied may waive off the cooling period in special conditions.
Vimlesh Prasad Mishra
Advocate, Lucknow
2303 Answers
4 Consultations

4.9 on 5.0

1. On the first motion the divorce petition will be moved before the court, on the next day you will have to come for mediation and thereafter a date that will fall after 6 months will be given.

2. No preparations as such, just a joint petition will be preferred by you two. 

3. That you have to move out and it is a irrevocable break down. Anyways, after filing the first motion you are free to go anywhere and you may just come on the date of second motion and get the decree. 

Regards 
Anilesh Tewari
Advocate, New Delhi
9487 Answers
124 Consultations

5.0 on 5.0

1) it will happen only after first motion 

2) your Lawyer has to apply to family court after first motion to waive the cooling period . 

3) in view of SC judgment court should waive the cooling period 
Ajay Sethi
Advocate, Mumbai
47878 Answers
2841 Consultations

5.0 on 5.0

1. Though the supreme court has now waived the mandatory waiting period of six months in mutual divorce cases, it still depends on discretion of the court . 
2. So unless a case of utmost urgency is shown to the court, it is not going to be waived for sure.
3. If due to this six months someone's plan to travel abroad for education or medical emergency period or any other important factor the court can waive the same.
Devajyoti Barman
Advocate, Kolkata
13442 Answers
181 Consultations

5.0 on 5.0

1. As per law, it is two hearings and followed by order.
2. Read the petition and if all your conditions satisified, viz., alimony, custody, return of property etc.,
3. Peculiar facts and circumstances. If both of you are likely to travel abroad, that may be one of the factor.
Rajaganapathy Ganesan
Advocate, Chennai
1117 Answers
7 Consultations

4.9 on 5.0

Hi
1. Waiver of 6months cooling period is still on papers and not being actively practiced in courts till now. I would suggest you to engage a lawyer who can make a request for waiver.
2. You should engage a lawyer from your side too.
3. Consent of you and your husband over all the matters are sufficient  waive off the cooling period.
Thank You
Rahul Jatain
Advocate, Rohtak
834 Answers
2 Consultations

4.9 on 5.0

This could be done provided both of you move a joint application for waiving of the cooling period. 

If the Family Court rejects this application, you have the option to assail the rejection before the High Court. 
Vibhanshu Srivastava
Advocate, New Delhi
5939 Answers
76 Consultations

5.0 on 5.0

1. In the first motion, both the parties have to present a joint petition for divorce by mutual consent. The Court may refer the parties to mediation.
2. A PETITION FOR A DECREE FOR DISSOLUTION OF MARRIAGE BY MUTUAL CONSENT UNDER SECTION 13-B OF THE HINDU MARRIAGE ACT, 1955, needs to be drafted and presented before the Court.
3. If both of you have urgency to settle individually asap. 
Vibhanshu Srivastava
Advocate, New Delhi
5939 Answers
76 Consultations

5.0 on 5.0

supreme court in "Amardeep singh And  Harveen kaur" ruled that :-

“we’re of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :-

i) the statutory period of 6 months specified in Section 13B(2), in addition to the statutory period of 1 year under Section 13B(1) of separation of parties is already over before the 1st motion itself;

ii) all efforts for mediation or conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed & there’s absolutely no likelihood of success in that direction by any further efforts;

iii) the concerned parties have genuinely settled their differences including alimony, custody of child, any other pending issues between the parties;

iv) the waiting period’ll only prolong their agony.

The Supreme court said that the waiver application can be moved in court after one week of the first motion in the court , by citing the reasons of waiver.

The waiver is absolutely the discretion the Concerned Court 

Supreme Court concluded that since the period mentioned in Section 13B(2) isn’t mandatory but directory, it’ll be open to the Court to exercise its discretion in the facts & circumstances of each case, where there’s no possibility of parties resuming cohabitation & there’re chances of alternative rehabilitation.

The ruling doesn't say it is mandatory in fact it was throwing lights on the existing provisions in a practical manner, hence it is not applicable and followed to every petition by mutual consent.
answering to your questions 
1. The application can be filed one week after the first motion 
2. The urgency or the circumstances requesting to waive off has to be mentioned in the Petition, it could be the reasons of existing disputes which were withdrawn after settling, long years of separation, any one of the spouse moving out of country for job, or any other genuine reasons which Court can be convinced the urgency.
Thresiamma G. Mathew
Advocate, Mumbai
1516 Answers
142 Consultations

5.0 on 5.0

Dear Madam,

It is only the Family Court Judge's discretion whether to waive of the 6 months period as per the recent Hon'ble Supreme Court judgment. Further the Hon'ble Supreme Court j has stated that the minimum period of six months can be relaxed by the trial court in certain situations and the estranged couple, who are seeking divorce with mutual consent, can file waiver application after a week of filing the first motion.

My opinion that you should wait and see what transpires on the date of hearing and request your lawyer to file an application after a week of filing the first motion. 

 
Uma Vyavaharkar-Acharya
Advocate, Mumbai
24 Answers

5.0 on 5.0

For Mutual Consent Divorce, minimum one year separation till the date of filing of petition is mandatory as per Section 13B of Hindu Marriage Act 1955. You would have stated in court record that you are living separately for more than one year, however you have mentioned as separated from January 2017 and as such your case has been posted to February\March 2018. According to recent Hon'ble Supreme Court orders the six months madatary period can be waived if both the husband and wife going to abroad and however final decision of description powers is given to concerned family court judge. 
Lakshmi Kanth
Advocate, Hyderabad
404 Answers
13 Consultations

4.7 on 5.0

Let me make clear that in mutual consent the petition is filed jointly.  File the first motion and after getting the first motion allowed.  File Second motion thereafter enclosing the certified copy of order of first motion a/w an application under section 151 CPC for waiving of the period of six months in view of the judgement of SC and take the grounds in the application under section 151 CPC as given by you above i.e. all things related to alimony, child, property and other got resolved.  There is nothing left to wait for 6 months and you are shifting the new city for job in May, 2018. Ask your lawyer (because the petition is to be prepared jointly and appn under section 151 cpc is also to be moved jointly) to make co-ordination with the lawyer of your husband after passing of first motion. 
Hope this would suffice the purpose.
Dalip Singh
Advocate, New Delhi
266 Answers
1 Consultation

4.9 on 5.0

The cooling period is waived by the court only on special factors.You may have your own lawyer if you doubt for the reliability of husbands lawyer.It is not necessary to have single lawyer for both the parties. 
Anand Shukla
Advocate, Delhi
97 Answers
1 Consultation

4.9 on 5.0

Too much delay has already happened in your case. It doesn't take so long in case of mutual divorce. 
1. Only after your first motion is allowed you will be allowed to file an application for waiving cooling off period.
2. Get the certified copies of divorce filed and order (if any) and update yourself with the proceeding that is going on in your case. The information provided by you is not clear. Hire a lawyer for your side too.
3. Ask your lawyer to draft an application for waiving cooling off period on reasonable grounds wherein it can be stated that there is no scope of settlement between the parties and all possible mode of settlement has failed.
Anupam Kirti
Advocate, New Delhi
86 Answers
1 Consultation

4.9 on 5.0

Supreme court has waived the said period in exceptional cases where the waiting period hinders the path of justice and affects the innocent divorce seekers. If you can project before the court that your case comes under extraordinary circumstances then court may waive your 6 months waiting period too.
Prashant Nayak
Advocate, Mumbai
2898 Answers
2 Consultations

4.8 on 5.0

Here I need guidance, if I can get divorce without waiting 6 month cool off period as I read in newspaper that Supreme Court waived off the 6 months cool off period if all things related to Alimony, Child, Property and other got resolved

Your lawyer need to be updated about the information.
The supreme court has clearly mentioned in the judgment that it is not pertinent as per law to wait for six months cooling off period.
You can file the mutual consent divorce case and after a week you can file an affidvit seeking to waive off the cooling off period before the concerned court.
You can engage a lawyer from your side too.
T Kalaiselvan
Advocate, Vellore
37962 Answers
409 Consultations

5.0 on 5.0

1.  After presenting your case in the first motion, you may wait for a period of one week to file the affidavit seeking waiving off the cooling off period.


2. You can engage the services of your own lawyer and he will take care of other issues.


3. The separation period of more than a year should suffice the reason seeking waiving off.
T Kalaiselvan
Advocate, Vellore
37962 Answers
409 Consultations

5.0 on 5.0

1. If you do not have faith on the lawyer of your husband then you may engage your own lawyer to safeguard your interests.

2. The cooling off period can be waived by the court if the court is of the opinion that no purpose will be served by making the parties wait for 6 months.

3. No evidence is required to seek the waiver of cooling off period. You just have to convince the court that cooling off period will serve no purpose in the case.
Ashish Davessar
Advocate, Jaipur
23426 Answers
652 Consultations

5.0 on 5.0

6 months cool off period can not be waive off, it takes time to get certificate from the court.  To write the legal openinon is not possible without looking the paper work. Also i don't know what is the stage of the case you have filed. Your case needs a detailed discussion
Regards 
Adv. Vikas Pandey 
Vikas Pandey
Advocate, Delhi
26 Answers

4.0 on 5.0

Hi,
You are suggested to engage one lawyer to suggest you and ensure that all the things are done in right manner. Your lawyer will take care of your interests. The application for waiving of six month period can be moved after the first motion. 
Ganesh Singh
Advocate, Delhi
1028 Answers

4.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer