• Divorce on Mutual Consent - 13B

Dear Sir or Madam,

My Wife and I have applied for separation on mutual grounds in the Principal Family court, Chennai in the month of November(2019). We were given a cooling period of 6 months. Its past 4 months and we have decided to request to waive off the cooling period. The advocate(common for both) says that we can file a petition to advance the second motion but a mediation is mandatory in this regard. I'm writing to seek your advise in the following. What happens if we request to advance the date of cooling period, and mediation is mandatory for this process ? Your valuable replies are highly appreciated.
Asked 3 months ago in Family Law from Chennai, Tamil Nadu
Religion: Hindu

2 months will pass in this process. Mediation will take few days. No use.

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

Dear, 

As per the supreme court no need to cooling period of 6 months for separation on the mutual divorce decree.

 you can file an early application before the family court for a divorce decree. 

 

You may call through KANOON.

Mukesh Kumar
Advocate, Jaipur
88 Answers

Not rated

1. You can move the cooling period waive application if you want the divorce at earliest but take note of the fact that 2 months is not a big period,

 

Suneel Moudgil
Advocate, Haryana
2063 Answers
3 Consultations

4.7 on 5.0

Cooling period is not waived off 

 

2) six months cooling period is mandatory 

 

3) mediation is mandatory . Object  of court is to help in reconciliation between parties 

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

You may file for second motion alongwith application for cooling period.  Since 4 months have already expired, you may be given a date by which you may be nearing to 6 months.  However,  in case it is mandatory in Chennai for go for mediation that too  in case you file for section motion.  A date of mediation and a date for court will be given.  You may convince the mediator why cooling period is not required and you can get the divorce on the date given by the court.   I hope you understand the position.

Dalip Singh
Advocate, New Delhi
574 Answers
12 Consultations

4.9 on 5.0

- As per Supreme Court , the cooling period is not mandatory , and it can be waived on the request of parties.

- Hence, after moving an application for waiving the cooling period , you can get divorce decree within the week .

- Further after recording of First motion in the mutual divorce , the mediation is not mandatory , because the Second Motion is merely an acceptance of first motion , by way of final statement before the court. 

Mohammed Shahzad
Advocate, Delhi
2488 Answers
33 Consultations

5.0 on 5.0

The mediation process is essentially to see if you folks can reconcile. However, if you cannot, then you agree upon the terms and conditions of your seperation and the mediation center certifies the same and presents it to the court upon which the court gives a decree. .


Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

See you can file an application to waive off the cooling period though after order on same the court shall ask you to attend mediation though you both on mediation date can deny staying together so that will fail and the matter will go back to court for second motion. You can seek short date for mediation. 

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

The mediation for any divorce case has been made compulsory these days owing to directions from supreme court  in this regard.

No doubt the mediation will not take much time, it can be completed on the same day also.

Hence you cannot agitate this.

 

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

You can file an application to waive off the cooling period in some cases courts have allowed it depending on circumstances

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

Yes mediation is mandatory in family disputes, it is a process through which court tries to reconcile the parties.

The mandatory cooling period for first motion is not completed, and that, if both of you are residing separately for more than one year prior to filing of the MCD, the court may consider your application to advance the second motion. (that aspect is not clear from your post.

Otherwise, you need to wait to complete the mandatory cooling period and complete the procedure.

 

S Srinivasa Prasad
Advocate, Hyderabad
1867 Answers
7 Consultations

5.0 on 5.0

1. Your advocate is bang on mark.

2. The court will hold mediation before adjudicating your application for waiving the cooling off period.

 

Ashish Davessar
Advocate, Jaipur
28564 Answers
835 Consultations

5.0 on 5.0

Only 2 months are left. Wait for it. The court may grant you what you want but you have to show the urgency.

Also it the court's discretion.

 

Rahul Mishra
Advocate, Lucknow
7927 Answers
15 Consultations

5.0 on 5.0

1. As per supreme court mediation is one of the mandatory condition for waive off the cooling period.

2. But it still depends on the discretion of court because Principal judge Family court can order to waive off the 6 months period even without mediation between both parties.

Mohit Kapoor
Advocate, Rohtak
7885 Answers
2 Consultations

5.0 on 5.0

Dear Sir,

In a recent decision of Amardeep Singh vs. Harveen Kaur,1 the apex court had a chance to interpret the law regarding mandatory 'cooling off' period in cases of divorce by mutual consent of the parties described under sec. 13B(2) of the Hindu Marriage Act, 1955.

In the present case, the parties were living separately for past 8 years and arrived at a settlement for all the disputes between them before filing the petition for divorce. It was sought from them that since the parties have already arrived at settlement, there is no need for them to wait for another six months as required under the section.

In the past, the Supreme Court has given waiver to parties for this 'cooling period' but these cases have been exceptional. The question posed before the court was that whether courts can give relaxation to parties with regard to the 6-month waiting period mentioned under the section without placing reliance on Art. 142 of the Constitution. If the provisions are not mandatory, then there is no need for the courts to apply Art. 142 for waiving off this period.

INTERPLAY BETWEEN ART. 142 AND STATUTORY PROVISIONS OF A LEGISLATION

While arriving at the decision, the court initiated the discussion on the interplay between Art. 142 of the Constitution and the statutory provisions of a legislation. The court cited several decisions of its own court where it was held that Art. 142 cannot be used to subvert or evade the scope of substantive provision of a statute. The power granted under the Article should only be used in certain exceptional circumstances.

The court also examined certain cases where this cooling period was waived because the court felt that the marriage has broken down irretrievably and the waiting period will only cause mental agony to the parties.

In its conclusion, the court held that the correct law has been laid down in Manish Goelv. Rohini Goel,2 stating that jurisdiction of the Supreme Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion Under Section 13B, asdoingsowillbepassinganorderincontravention of a statutory provision. Generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the Rule of law and not to pass the orders or directions which are contrary to what has been injected by law.

DISCUSSION ON NATURE OF SEC. 13B (2)

In further discussion, the court went on to examine that whether the period mentioned under the section is mandatory or directory for the courts.

It was understood by the court that under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is sacred and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

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 a possibility of differences being reconciled. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option. The period mentioned in Section 13B(2) was not mandatory but directory, it would be open to the Court to exercise its discretion in the facts and circumstances of each case where there was no possibility of parties resuming cohabitation and there were chances of alternative rehabilitation.

COURT'S FINAL DECISION

If 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:

  1. The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year Under Section 13B(1) of separation of parties is already over before the first motion itself;
  2. All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
  3. The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
  4. The waiting period will only prolong their agony.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the concerned Court. The Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.

Netravathi Kalaskar
Advocate, Bangalore
4953 Answers
25 Consultations

4.8 on 5.0

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