• 6 months cooling off period - mutual divorce

I have been separated from my wife for past 7 years wherein we have not met even once. We have now decided to file a petition for mutual divorce ... Do we still require to underdo 6 months of cooling period??
Asked 1 year ago in Family Law from New Delhi, Delhi
Religion: Hindu
1. Yes, you are required to appear before the Court on the date of the 2nd motion which is normally fixed after 6 months from the date of filing he MCD petition,

2. The Court will ask both the parties whether still they want divorce or not before issuing the decree of divorce.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
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1. Since the institution of marriage has not worked favourably for you both, better to opt for Mutual Consent Divorce.
2. By opting for MCD, you will be saving time, effort, money and long litigation.
3. Cooling period starts after filing of joint petition and first motion in family court. Hence both of you have to undergo cooling period of minimum 6 months to maximum 18 months, which enables an opportunity to the couple for withdrawing the divorce petition.
4. Therefore even if the couple are separated for 7 years, filing for MCD is now only and hence the cooling period.
5. Judge will ask both of you, whether there is any change in decision or both of you are ready to be divorced. Based on the answer given by the parties, divorce decree or otherwise shall be passed.
Shashidhar S. Sastry
Advocate, Bangalore
1233 Answers
59 Consultations
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The period of six months contemplated by law for giving effect to the application filed by consent under section 13B of the Hindu Marriage Act, 1955, is with some specific logic as to give room to either party to withdraw from the consent.

The Supreme Court has held the six months cooling period should not come in the way for allowing the plea for dissolution of marriage by mutual consent when it has broken down irretrievably. Supreme court is empowered under article 142 to grant divorce waiving 6 months cooling period, in order to do complete justice to the parties. 

you may approach supreme court for getting immediate divorce.
Shivendra Pratap Singh
Advocate, Lucknow
2735 Answers
41 Consultations
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The cooling off period is indispensable. Only the SC can waive off this requirement. So the court would inquire from you after 6 months whether you want to terminate the marriage or not. The 7 years that you have lived separately cannot be treated as cooling off period.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
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Hi, as per the ruling of the Supreme Court Judgement you have to wait 6 months from the date of presentation of the mutual consent divorce before the court, though you have separated from 7 years.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
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Six month cooling period is mandatory after the filing of first motion of divorce under section 13(B) of Hindu marriage act but the family court may waived off that period if think fit after using the inherent power of court under section 151 of CPC

Feel Free to call
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
129 Consultations
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1) length of your marriage for period of 7 years has no co relation with  the cooling period 

2) if you file for divorce by mutual consent 6 months cooling period is mandatory 
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
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1) judge will after period of 6 months ask you whether you want divorce or not 

2)if you or your husband with draw their consent divorce petition would be dismissed 

3) 6 months coiling period is counted after filing for divorce by mutual consent . 
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
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1. The word cooling period has been coined by us. You might have been separated for years but have not yet divorced,

2. Application for MCD might be filed on impulsion and the said decision might be regretted by any of the parties later on when his head cools down for which he/she is allowed opportunity to withdraw it after 6 months,

3. The Act states that the 2nd motion will be fixed after 6 months when the parties will be required to confirm that they are still will for divorce.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
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Though you have stayed separately for seven years but it is a procedural that once you file petition for mutual consent divirce you will have to wait for another six months. After six months of waiting period the court would ask whether there has been a change of mind or are you both still head strong to go ahead with the divorce. 

In rarest of the rare case this six months of cooling period is been waived off so your lawyer can try convincing the judge to waive off this cooling period. Since seven years is a long period of waiting. 


Regds,

Adv.Payal
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