Anonymous
Asked July 20, 2016

Cooling off period before divorce

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Is 6 months cooling period mandatory after the joint petition is filed in mutual divorce in India? can it be waived Off?

Answer 1

Courts tend to waive off the “cooling period” if the circumstances of the case demand so and there is no chance of reconciliation between the parties.

 

Take the case of Rakesh Harsukhbhai Parekh vs. State of Maharashtra[1]. Here, the Bombay High Court held that the six-month cooling-off period for a couple who file a joint petition for divorce cannot be insisted on by the family court if the couple has already been living separately for a year and their contested divorce plea has been pending in court for over six months.

 

Recently, in In Re: Mittal Ramesh Panchal and Manoj Dayalal Panchal, the Bombay High Court again agreed to waive off the cooling period, saying that “it was never the intention of the Legislature that such period is to be observed irrespective of cases where the marriage has been irretrievably broken and there are no chances of reconciliation between the parties or in cases where it would be futile exercise to wait for six months.”[2]

 

But, if these circumstances are not present, the cooling period rule is generally followed, and taken to be mandatory.[3]

 

Notably, the Supreme Court under Article 142 of the Indian Constitution can waive this period if the Court is satisfied that the marriage has irretrievably broken down. But, this power is restricted only to Supreme Court.

 

 

[1] Writ Petition No. 1381 of 2010

[2] I(2014)DMC20 Bombay; 2014(2)ABR 329 Bom.

[3] See Grandhi Venkata Chitti Abbai vs. Unknown (AIR 1999 AP 91); Hitesh Narendra Doshi v Jesal Hitesh Joshi (AIR 2000 AP 364).

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