When both husband and wife, or the parties to the marriage, want to end it, legal action for a mutual consent divorce is started. By agreement, they decide to part ways. The Hindu Marriage Act of 1955 stipulates that both the husband and the wife have the legal right to divorce each other for a variety of grounds listed in Section 13 of the Act. Moreover, mutual consent divorce is allowed under Section 28 of the Special Marriage Act of 1954 and Section 10A of the Divorce Act of 1869.
According to the Hindu Marriage Act of 1955, there must be a six-month waiting period between the first and second motions for a divorce by consent. The purpose of this provision is to encourage the parties to consider settling down and living together.
The cooling-off period's purpose is to give the disputing parties a chance to reconsider their choices and try to come to an amicable agreement. But as the Indian courts have repeatedly noted, the cooling-off period frequently runs counter to the partners' free choice.
Legal Provision:
In cases of divorce by mutual consent, Section 13B(2) of the Hindu Marriage Act, 1955, mandates a 6-month "cool down" or awaiting term after filing the divorce petition before the matter continues to give the couple one last chance to patch things up. It has been hotly debated whether the 6-month cooling-off period is necessary or whether courts can waive it in specific situations, and civil cases across the country have regularly drawn opposing conclusions.
Case Laws:
The filing of the petition with mutual consent does not entitle the court to issue a divorce decision, according to the Supreme Court in Sureshta Devi v. Om Prakash. There is a six- to eighteen-month cooling-off phase. This provides the parties with an opportunity to think things through and possibly change their minds. If the parties decide to come together and change their minds, there might be a case. The cooling-off period's purpose, according to the Apex Court, is to give the parties time to consider their choices and try to come to an amicable agreement. The cooling-off period, however, frequently goes against the parties' free will.
In the case of Naveen Kohli v. Neelu Kohli, the court observed that the cooling-off period was superfluous and unneeded in cases where both parties jointly requested that the court dissolve a "substance-less" marriage.
The Supreme Court of India upheld the appeal in the case of Amit Kumar v. Suman Beniwal and ruled that the conditions for waiving in the Amardeep Singh Case (above) were merely indicative and not exhaustive. The Court also explained that the Family Courts had misinterpreted the ruling in Amardeep Singh because it only regarded the requirements outlined in that ruling as obligatory. According to the lower courts, the requirement that the couple be separated for at least 18 months prior to filing for divorce is one of the conditions that must be satisfied in order to waive the 6-month waiting time specified in Section 13B(2). "It is well established that a judgment is a precedent for the legal matter that is raised and determined," the Court said. A judgment should not be rigidly and pedantically interpreted like a statute.
Object:
To protect against making a hasty choice if there was still a chance that disagreements may be resolved
not to prolong an ineffective marriage or the partners' suffering when there was no hope of a reunion
If there is no hope of reconciliation but there is a potential for new rehabilitation, every effort must be made to salvage the marriage.
The court shouldn't be helpless to give the parties a better choice.
In circumstances of consensual divorce, there is no one-size-fits-all answer to the cooling-off period. The length of the cooling-off period will vary depending on the specifics of the divorce because every couple's circumstances are unique. However, in general, the cooling-off period is meant to give couples some time to think through their divorce decision and ensure that it is the wisest course of action for both parties.
divorce lawyer in Gurgaon can be appointed if the couple lives in Gurgaon. Moreover, if the couple lives in Noida, then a divorce lawyer in Noida can be appointed. divorce lawyer in Delhi. can also be appointed if the couple lives in Delhi.
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