• Reinstating of mutual consent case

We had filed MCD in jan 2015and the first motion was completed. The second motion was to be in july2016 but due to request by the husband  to grant him dates the second motion was to be in jan 2016. But on that day my husband withdrew his consent.so the case was dismissed as withdrawl . Due to intervention of police and respectable members of society the husband is ready for second motion . Is it possible to reinstate the MCD case and waive off the 6 month waiting period as already 12 months have been passed from the date of second motion.
The judge is asking that on what grounds can such case be reinstated or the waiting period be waived off?
Asked 5 months ago in Family Law from Faridabad, Haryana
Religion: Hindu
Based on the settlement, the court have power to reinstate the case under section 151 of CPC.
even section 13B of Hindu marriage act also give power to court till 18 months hence the court can  reinstated the case and completed second motion.
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Nadeem Qureshi
Advocate, New Delhi
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If the court dismissed the 13 B petition in default then file restoration application by filing a joint application of husband wife. If the case is restored then the question of waving of 6 months does not arises and court can decreed the case in nearest day after second motion.  If the family court reject the said application then approach the High court and definitely you can get a remedy 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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1) once your husband has wit drawn his consent and case dismissed by family court  as with drawn case cannot be restored now as husband has again changed his mind 

2) you have not mentioned whether husband as taken some benefit under consent terms

3) if he had taken some benefits under consent terms and with drawn his consent you can file appeal against order of magistrate dismissing the divorce petition 

Ajay Sethi
Advocate, Mumbai
23294 Answers
1220 Consultations
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1. No. The first MCD petition has been dismissed in its entirety for non appearance,

2. You shall have to file it afresh and follow the rule and procedure from the beginning  including waiting for the completion of the cooling time.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
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There is no provision for restoring the dismissed mutual consent divorce proceedings.  It is not like the dismissed for default case.
A fresh case has to be  filed and no waiver can also be permitted because no court other than supreme court has power to waive the six months cooling period.
You can file it in the family court with an application to waive the waiting period, the family court dismiss the petition, you can approach supreme court for waiver.
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
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Yes, court have power to grant a decree of divorce after using their power under section 151 of cpc
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
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Hello,
1) Section 151 of CPC is not applicable in the current circumstances.

2) You can cite nikhil kumar vs rupali kumar ( civil appeal no. 4490 pf 2016 arising out of SLP(c) no. 12161 of 2016) in support of your contention for waiver of 6 months waiting. As the citation is recent and the background are different you need to get the judge convinced.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
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As I informed you earlier that this power is vested in supreme  court alone and this judgement cannot be quoted as relevance to any pending case in any lower court including high courts.
When you go through that judgment you can find out that they have given strong reasons that why they will not be able to wait until six months and have justified their urgency, that too they approached the apex court with a SNP invoking article 14 of the Indian constitution.
If you feel that your case is also having urgency for deciding it immediately you may approach the supreme court , the lower court have no power to entertain such applications.
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
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1) cooling period can be waived off  by SC under article 142 of the constitution . only Supreme Court has got the power to grant relaxation in such cases by invoking the doctrine of irretrievable breakdown of marriage.


2) family court has no powers to waive off mandatory cooling period 
Ajay Sethi
Advocate, Mumbai
23294 Answers
1220 Consultations
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This is not possible now. If the case has been dismissed as withdrawn then you have to file a fresh mutual divorce case as a case that has been dismissed cannot be restored. Once the fresh petition is filed you may move the SC for waiver of 6 months which will be decided in the face of the peculiar facts and circumstances of the case. Except the SC no other court can waive the waiting period. 
Ashish Davessar
Advocate, Jaipur
18162 Answers
449 Consultations
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Resort cannot be had to 151 to restore a dismissed MCD petition.
Ashish Davessar
Advocate, Jaipur
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449 Consultations
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1. There is a difference between your case and the cired case,

2. In the cited case, the respondent was leaving the country for settling abroad for her livelihood and it was difficult for her to return to India within a short span of time to attend the 2nd motion,

3. In your case, both of you are residing in India and there is no appearing cause to waive the cooling period with the back ground where one party has refused to attend the 2nd motion after te cooling period for which the MCD was dismissed,

4. However, you can try the matter and file a SLP praying for waiving the cooling period but you shall have to show acceptable ground for such waiver.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
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The nikhil kumar vs rupali kumar decreed the Supreme court by invoking its jurisdiction under Article 142 of the Constitution .With the above observation, the statutory period of six months was waived and the marriage between the parties was dissolved.This provision can apply only supreme court. 

The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself." 

If your situation is like same then you can also claim waiver by approaching the Supreme court 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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