Converting annulment to mcd
Amit
(Querist) 10 August 2012
This query is : Resolved
Hi,
My annulment case is ongoing since the past 10months. She is yet to file counter. But one of her relatives has given an indication that instead of annulment, may be we can go for MCD (no idea what my wife thinks though).
My questions is:
(1) What's the process for converting it?
(2) Can the 6months period be waived off now that 10months have gone since filing of petition by me?
(3) If the family court waives the cooling period, can it be later challenged by her in HC?
(4) Can you cite some judgements where HC/SC has upheld/rejected such waiving (noting that divorce case is pending from more than 6months)?
(5) Any pointers on how to proceed?
Thanks
Adv.R.P.Chugh
(Expert) 10 August 2012
Mr.Amit,
1. It cannot be converted. You'd have to withdraw the annullment petition and then file a Joint McD petition.
2. The duration of pendency of divorce or annullment is of no consequence since cooling off period is given after decision of Mutual Consent is taken to re think it.
3. Only the Supreme Court has the power to waive off that period in exercise of it's powers to do complete justice u/a 142 of the Constitution. However for that you'd have to get your application for waiver dismissed by Family Court then take it via HC or directly to SC - this is not advisable at all as chances are really bleak and done only in marriages which are irretrievably broken down.
Amit
(Querist) 10 August 2012
Thanks Bharat.
Your response is point-blank and helps a lot.
Nadeem Qureshi
(Expert) 11 August 2012
Dear Amit
1. You have to filed another MCD Petition before the court after withdraw annulment petition.
2. as per judgement passed by Madras HC
in the matter of
K.Thiruvengadam v. nil, AIR,2008Mad 76,The Hon'ble HC held that the period of six months cannot be taken as mandatory, because if it is mandatory the very purpose of liberalised concept of divorce by mutual consent will be frustrated.
3. Yes it can be challenged in HC
4. contact personally
5. no specific point to proceed without knowing.
Feel free to call
