Cooling-off period in mutual consent divorce

The cooling-off period is a mandatory waiting period that applies to mutual consent divorces. A mutual consent divorce is a type of divorce in which both parties agree to the divorce and file a joint petition for divorce in court.

As per Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, in mutual consent divorce, the court shall not grant the divorce petition unless it is satisfied that the parties have been living separately for a period of at least one year immediately preceding the presentation of the petition and that they have also attempted to reconcile but failed. The court also cannot grant the divorce petition unless the parties have undergone a “cooling-off” period of six months from the date of presentation of the petition.

The cooling-off period is intended to give the parties time to reflect on their decision to divorce and to consider the possibility of reconciliation. During this period, either party can withdraw the petition for divorce. If the petition is not withdrawn, and the six months have passed, the court can proceed with the divorce proceedings.

It’s worth noting that the cooling-off period is not mandatory and can be waived by the court, as it is intended to provide an opportunity for parties to end their nuptial knot of failed marriage.

When the court can waive cooling off period

The cooling-off period in mutual consent divorce, as per the Indian laws, is mandatory and cannot be waived by the court. The Supreme Court of India, in a number of judgments, has held that the cooling-off period is an integral part of the mutual consent divorce process and serves an important purpose in ensuring that the parties have a chance to reflect on their decision and consider the possibility of reconciliation.

However, in certain exceptional cases, the Supreme court has held that the cooling-off period can be waived by the court. The court can waive the cooling-off period if it is satisfied that:

  • The parties have been living separately for a continuous period of not less than five years immediately preceding the presentation of the petition
  • That there are no chances of reconciliation, and that the parties have genuinely settled their differences
  • That the parties have undergone the cooling-off period and there has been no change in their circumstances and that they have not withdrawn the divorce petition.

It is worth noting that the above-mentioned conditions, as per the judgments, are exceptional and the court shall have to satisfy itself that the conditions are fulfilled before waiving the cooling-off period.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

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