I (Pooja) have filed for a divorce case (contested) in Gurgaon District court. The case has been going for 1 and half years now. Now me and my husband have agreed for Divorce by mutual consent. But my lawyer says it will still take 6 months. He says in Haryana, only High Court has the authority to waive off the 6 months cooling period. District court judge can not do it. My first question is.. is it true to waive off 6 months cooling period I will have to go to Haryana High Court only? My second question is.. If I go to Haryana High Court for the waiver, my going alone will be enough or both parties will have to go since we have already agreed for a mutual divorce?
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Just for info... We got married in 2009 but have never lived together as husband and wife.
1)if you and your husband have agreed for conversion of existing divorce petition into divorce by mutual consent it is not necessary that there should be cooling period of 6 months . you have already spent 18 months in court after filing the divorce petition
2) if family court refuses waive the 6 months cooling period then file petition in HC for waiving the cooling period
3)both parties should jointly make application for waiver of cooling period
1. You both can file an application for converting your said divorce suit to mutual consent divorce petition duly waiving the 6 months cooling period since you have already passed more than 1 & 1/2 years.
2. The divorce suit will be converted to MCD petition but the application for waiving cooling of period will be rejected.
3.Approach High Court against the said Order of the lower court praying for a direction upon the lower court to waive the said cooling of period on the ground that you have already spent the said period and see what direction the High Court gives.
4. in normal case, application for waiving the said 6 months period is filed before the supreme court siting need for emergency divorce as the ground for seeking the said waiver.
1. You did not live together as husband and wife is no ground for seeking divorce or waiver of cooling period.
2. Divorce decree is sought on legally acceptable grounds like cruelty, desertion etc.
1. The cooling off period can be waived only by the Supreme Court, and by no other court including the HC.
2. It is only in exceptional cases that the SC waives the cooling off period where it appears that no useful purpose will be served by making the spouses wait for 6 more months.
My first question is.. is it true to waive off 6 months cooling period I will have to go to Haryana High Court only?
Actually this is a modification of contested divorce case to mutual consent divorce case.
Even if the court agrees for making amendment to the existing case, if the court is deciding to put it on hold for six months as per the norms stipulated for such cases, then the parties have to wait for the expiration of 6 months cooling off period.
Instead, if both parties agree for divorce and this decision is being informed to the court, then using its discretionary power the court may ask both parties to let in evidence the same day, close evidences of both sides and make it appear the same as contested divorce and after that court may pass orders in a day or two, this will be more effective and less time consuming. But it depends on the court and judge using its discretionary powers.
My second question is.. If I go to Haryana High Court for the waiver, my going alone will be enough or both parties will have to go since we have already agreed for a mutual divorce?
High court has no power to waive 6 months the cooling off period, only supreme court can waive it.
In supreme court advocates from both side can represent without parties until court summons the parties appearance.
Just for info... We got married in 2009 but have never lived together as husband and wife.
This separation is different to that of the the waiting period of 6 months after filing the mutual consent divorce case.
Dear Querist
Immediately file a mutual consent divorce petition before the Family court along with an application U/s 151 of CPC for the waived off the cooling period as both the parties has already spend more then one year in fight the contested case of divorce before the family court and there is no chance for reconciliation of the parties and the marriage has been dissolved without waiting six month's cooling period, the Family Court has power to waived off the cooling period.
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Finally today we filed the divorce case by mutual consent. The court has given us 6 months cooling period. The case is approximately 2 years old. My husband is not ready to come to Supreme Court for getting this time waived off. What can I do in that case? Can I approach the Court alone?
1) since your husband is not willing to file joint petition for waiving 6 months cooling period better wait for 6 months
Do not be under the impression that supreme court will waive the 6 months cooling off period in such cases as routine.
As you have already waited so long, bear it for another 6 months and get rid of it after the second motion, i.e., after 6 months.
Supreme court would not entertain any such application if you approach alone without the other party to this case.
1. Approach the Supreme Court by yourself with an affidavit executed by your husband affirming that he also wants the cooling period of the said MCD waived since the divorce suit was pending for more than 2 years and there is no scope of reconciliation any more.
2. If the Apex Court allows your petition, get the MCD decree passed immediately, otherwise wait for the date of the 2nd motion to get the decree of divorce under mutual consent.