Cooling Period in 2 Motions of Mutual Divorce

In mutual divorce both the parties the husband and the wife files the joint petition before the family court under section 13B of the Hindu marriage act and under section 28 of the special marriage act, the both the parties who had marriage relationship with each other under these provision files a petition for the dissolution of the marriage together but in order to file such petition.  

Divorce by mutual consent

As per the Hindu Marriage Act the mutual consent is said to be the ground for the divorce, and as per the amendment in 1976 the section 13B was incorporated to this act. In mutual consent divorce, the bride and groom or the wife and husband give their consent to end the marriage and get themselves separated as this mode of divorce reduces the time as well as saves the money as compared to the one side form of divorce known as contested divorce. Section 13B of the Hindu Marriage Act explains the procedure and the important requirements for the parties who want the divorce on their mutual consent.

This is the form of divorce where both the parties husband and the wife give their mutual consent to get separated from each other by the process of mutual divorce, the process of mutual divorce is way more easier than the contested divorce, divorce by mutual consent takes very less time and less expense than other divorce processes.

As per the section 13B the Hindu Marriage Act :

• The married couples must be living separately for at least a term of one year 
• Also they are not able to live together
• And they must agree to get the divorce mutually

Conditions for the Mutual divorce as per section 13B 

There are certain criteria that need to be followed while filing the joint petition for the mutual consent divorce

Separation of One year 

• The party to the divorce must be living separately for one year or more than one year and are not able to live together and they have given their consent that they are not able to continue together. 
• Before filing the petition the period of separation of one year must be completed 
• Living separately means that there was no such relation between the couple as like the husband and the wife

In Sureshta Devi vs, Om Prakash AIR 1992 SC 1904, in this case The Hon’ble Supreme Court held that the term living separately means not living like a husband or wife, the place of residence does not mean anything this has the no reference, the parties to the divorce may living under the same roof  under any circumstances but they don’t possess the relation as like the husband and the wife, and in some circumstances the parties may be living in different house but the relation is maintained like husband and the wife, the main requirement to file mutual divorce that they must be living separately and the don’t have or posses the relation of husband and the wife.

In the case of Amardeep singh v. Harveen Kaur the Apex court held that cooling off period of six months was not mandatory.

The court have the power to waive the cooling period under such circumstances:-

• If the cooling off period has been terminated or expired before first motion
• The all efforts of conciliation and mediation have been failed
• All disputes such as custody of the child and the alimony or the maintenance has been settled

The mandatory cooling off period of six months as per section 13B(2) can be waived off only if the above mentioned grounds are satisfied and also there should be the separation of at least one year before filing the first motion.

How can Lead India help you?

Lead India has the expert panel of the advocates who deal with the family and divorce related issues and also guide you through easy and key steps, you will be guided throughout from filing of the first motion to get the decree of the divorce.