Sridhar (Engineer) 20 October 2012

Help with question related to divorce

Hi,

We've a query with regards to divorce, so seek your expert advise.

My cousin got into an agreement to file divorce with his wife but his wife's dad wants him to apply for divorce first on the grounds of harrassment and cruelty as his wife has already filed a 498A case. Later when she gets summons after 45 days, she is expected to file a counter petition stating that she has reached an agreement with my cousin which was settled outside the court and requests for divorce before the judge.

By following the above process, my cousin's father-in-law says that divorce would be granted in 45-60 days on mutual consent basis and there is no need to wait for 6 months. My cousin's father-in-law is not a lawyer though. Is there any provision like this in law as we know that 6 months cooling period is a must for divorce filed through mutual consent.

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4 Replies

Rahul Kapoor (Legal Enthusiast) 20 October 2012

outside the court ? at mediation centre or somewhere else ?

divorce depends on number of motions in the court ..

regards-

rahul.gogreen@gmail.com

Tajobsindia (Senior Partner ) 20 October 2012

Originally posted by : Sridhar
	XXX. Later when she gets summons after 45 days, she is expected to file a counter petition stating that she has reached an agreement with my cousin which was settled outside the court and requests for divorce before the judge. By following the above process, my cousin's father in law says that divorce would be granted in 45-60 days on mutual consent basis and there is no need to wait for 6 months. My cousin's father in law is not a lawyer though. Is there any provision like this in law as we know that 6 months cooling period is a must for divorce filed through mutual consent.

1. He is from old (practical) schools.
2. He is talking about consent Decree under family laws S. 13 HMA read with O 23/R 3 CPC is my base interpretation to your overall facts.
3. For the same mental cruelty based petition filed then goes for usual mediation procedures under Family Court Act Rules and there before mediator / counselor parties agree for certain mutual agreements convert to writing then signed by them and the mediator and such (mediation) proceedings consent agreement Notes file is sent back to concerned Court for drawing consent Decree where usual parties take usual pleas to convert their earlier petition based on mental cruelty now that in pursuance of family settlement arrived at between the parties before mediation consent decree be passed. Fast and smart practical way of pleadings only if "collusion" as in facts of the query is not so obvious / omitted for a simple fact an Amendment Application to amend plaint paras as well as prayer clause of "mental cruelty" are also filed and got allowed which are all still time consuming petition writers skill based efforts!
4. From the face of the collusive facts in your query the ld. Judge having read the mediation consent agreement and after doing procedural enquiry of the parties before h/er may feel apprehensive of the ‘collusion” nature of parties before h/er and may refuse consent Decree is my early view. This said based on narrative process flow facts of your query. But yes, some places people do that (but they donot spell the bean) and for the same I reserve generic option as I feel bypassing set Laws should be discouraged in public forums.
5. Yes cooling period is still 6 months. Only in exceptional and justified cases Hon’ble SC has power under Art. 142 COI to do complete justice to waive-off 6 months cooling period and for the same trial Court and or State’s HC have not been delegated such powers to waive off 6 months, but yes there are emerging exception to the Rule for which I reserve my further opinion.

[he he nevertheless I enjoyed reading practical approach from old schools which yes is doable if it is not so obvious explicitly shown around.]