Nov 16,2022 | 12 min read

Waiving Off Cooling Period

Introduction:

 

The Supreme Court of India created a new viewpoint on how divorce proceedings under the Hindu Marriage Act, 1955 are handled. It questioned the veracity of the cooling-off period required by the Hindu Marriage Act in all circumstances for mutual or consent divorces. The Apex court held that it lacked the authority to disregard the specific language of the Hindu Marriage Act or any other law.

 

According to the court, the Hindu Marriage Act's provision for a six-month cooling-off period is merely a recommendation and not a requirement. Therefore, if other conditions are met, such as the fact that the parties have been apart for longer than 18 months, that all attempts at counselling and conciliation to bring the parties back together have failed, and that the parties have actually resolved their differences, even with regard to alimony, the family court where the divorce proceedings are ongoing may, in extraordinary cases, suspend this time.

 

Legal Aspects of Divorce :

 

For any couple, a divorce or separation ranks among the worst possible outcomes. In India, challenging a divorce can also be a lengthy and expensive process, which is another factor. In fact, couples must prove that they have been apart for a year even if they generally agree to the separation. Marriage is viewed as a highly important and romantic aspect of life in India. Each religion has a different approach to marriage. 

 

The dissolution of marriage differs with a separate procedure. The Hindu Marriage Act of 1955 covers Hindus, Buddhists, Sikhs, and Jains. The Dissolution of Muslim Marriages Act of 1939 covers Muslims. The Parsi Marriage and Divorce Act of 1936 covers Parsis. The Indian Divorce Act of 1869 covers Christians. The Special Marriage Act, 1956 governs civil and intercommunity marriages and provides for the dissolution of unions where one partner is a registered citizen of a different country. 

 

The law of dissolution of marriage only applies under specific conditions and not always. Before ending the marriage, a partner might begin to legitimately notify the next life partner of their intention to separate. In India, there are three types of divorce laws: uncontested divorce, consensual divorce, and void marriages.

 

What is Cooling-Off Period:

According to Section 13-B of the Hindu Marriage Act of 1955, married couples who agree to divorce one another must file a petition with the court through a divorce attorney. Both parties must agree to a peaceful divorce in order for it to be declared a Consensual Divorce. A simple way to end a marriage legally is with mutual consent. 

 

According to Section 13-B(2) of the Hindu Marriage Act of 1955, there must be a cooling-off period of six months between the first and last motion for divorce by consent in order to consider settlement and cohabitation options. The cooling period is the legal phrase for the time frame.

 

Relevancy of the Period:

The cost of a divorce that is agreed upon is clearly preferred. The most affordable way to end a marriage is frequently through a consensual divorce that is uncontested. Nevertheless, the cooling off period's modest effort is actually the key latitude in an amicable divorce. 

 

A consensual divorce offers a method to keep things that way if there is little to no conflict between the two couples. It is more discreet, more practical, and more likely to keep more of your benefits in all of your personal assets and out of the hands of legal advisors and other necessary items during the process of the divorce of marriage. 

 

Consensual divorce eliminates pointless disputes and protects significant time and financial assets.Consensual divorce is the greatest option given the growing number of reasons for separation. Uncontested divorce gives couples who wish to end their marriage in private and with.

 

When can it be Waived-Off?

The Hon'ble Supreme Court ruled in the case of Amardeep Singh v. Harveen Kaur that the minimum cooling-off period of 6 months may be waived in cases of consensual divorce. According to Section 13B(1), the petition must be sustained in order for the Court to have jurisdiction over it and cannot be dismissed. 

 

However, since section 13B(2) relates to administrative matters, it should be removed after carefully considering the circumstances and specifics of each instance where there is a remote chance of reconciliation. It is not required to apply Article 142, which has typically been used by courts to postpone time in situations involving exceptional circumstances. The court in Amardeep's case observed, “In order to waive off the statutory waiting period of 6 months under Section 13B (2), the court needs to consider the following before making a decision: 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; All efforts for mediation/conciliation including efforts in terms of Order XXXII A Rule 3 CPC/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; the parties have genuinely settled their differences including alimony, custody of a child or any other pending issues between the parties; the waiting period will only prolong their agony.”

 

In these cases, the waiver application with justification for the request may be submitted one week following the first petition. Regarding the second-period waiver, the Court may use its discretion.

 

Conclusion:

 

Consensual divorce is the phase in which the spouses decide to end their union on their own. Every marriage has a unique relationship, but by offering a fresh viewpoint on amicable divorce, this cooling-off period will through legislation have a positive effect on society. In our society, when a marriage ends in divorce, we only consider how the children will suffer, but occasionally mend the broken relationship and live a dignified life are much more important in one's life. The best method to end a marriage while considering its long-term effects is through a mutually agreed-upon divorce, in which both couples say farewell to their marriage and begin new friendships.

 


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ABOUT THE AUTHOR



Rohan Yemul

Mutual, contextual divorce, maintenance, child custody seeking adjournments. A well-known Mutual divorce lawyer in Mumbai, with Advocate Rohan Yemul, make the filing of your divorce case easy, as with his experience of many years in various courts let it be Bandara Family court or thane family court he has always made a remark in every of his case because only an experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. #Divorce lawyer #family lawyer #divorce lawyer in Mumbai

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