• Time taken for Second motion in Kolkata

We are going to file the first motion for mutual consent divorce in Kolkata next week. Our lawyers are saying we will only get a second petition date after 1 year. Is that true and can anything be done to get the decree after 6 months of cooling off?

Thanks,
Sudipto Pal
Asked 4 years ago in Family Law
Religion: Hindu

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12 Answers

A local lawyer from Kolkata can apprise you on this. Let lawyers from Kolkata registered on this forum answer your query.

To me this looks very strange, but there's a possibility that due to the pendency of cases, the Court might be giving the date after one year, for the second motion.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

1. Well, due to heavy workload the courts are overburdened in india orvun west bengal due to which the date for final motion is often given after one year especially in alipore court.

2. However there are many methods available under which the final hearing can be done within six months.

3. Feel free to connect.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Disposal of case depends upon pendency of cases in family court

2) request court for an early date after the 6 months cooling period

Ajay Sethi
Advocate, Mumbai
87917 Answers
6207 Consultations

5.0 on 5.0

Dear,

The divorce petition is in the form of affidavit, which is to be submitted to the family court. After the filing of the

petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6

months.

After six months the parties have to present themselves again in the court for making a second motion confirming

the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the

court.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

Hello,

Yes your lawyer is correct .

Please feel free to ask me if you have any other queries.

Regards

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

Dear Client,

One year date may be given due to pendency of litigation in court, otherwise in mutual divorce, date given is just after of 6 months. Recording of statement and divorce decree.

Still i don`t think, date after one year shall be given else cooling of period will become of 1 year which is against the law.

Local advocate can only pursue in such situation to press for 6 month date only.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Dear Sir,

You must believe your advocate. He is like your family doctor. The advise of your advocate depends upon local court procedure and the pulse of the local judge. Just follow his instructions since is only mutual case and contesing, nothing to worry.However I am enlightening you about relevant recent trends.

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Divorce by Mutual Consent Step by Step Procedure

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Hindus: Under Section 13B of the Hindu Marriage Act, a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage. The filing of a mutual divorce by both the husband and the wife is termed as ‘the first motion’. A couple can file for a second motion after a gap of six months. This time span is provided to the couple so that they get time to reconsider their marriage. A divorce decree can be passed before the completion of the six months term if all the mandatory requirements are sufficed. If the divorce file is not withdrawn within 18 months,the court passes a divorce decree. In case one of the sides withdraws the petition,the court initiates to make an enquiry. If the concerned side disagrees to give the consent,the court holds no right to pass the judgment.

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Six Months Waiting Period In Section 13B(2) Of Hindu Marriage Act For Divorce By Mutual Consent Not Mandatory: SC [Read Judgment]...

========================================================================================

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

If the marriage is more than 1 year old and if both parties have been staying separately for a minimum period of 2 or more years and possibility of reconciliation is ruled out, then both parties can seek mandatory cooling off period of 6 moths in the family court and such parties can dissolve their marriage in less than 1 month.

This is as per the recent supreme court ruling, this must be applied to by your advocate as well.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

yes it can be true due to pend ency in court or the trend for mediation in court as under 13 B hindu marriage act any date between 6 months to 18 months can be given refer the provision sub section 2 below:

Section 13B in The Hindu Marriage Act, 1955

27 [ 13B Divorce by mutual consent. —

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.

(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

Now what you can do it file an application for waving off before the family court if these condition are satisfied.

the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; all efforts for mediation/conciliation are over , parties have settled the custody and maintenance and prolong period will only increase agony.

See it 90 percent chance the family court will reject the waving off application , So prefer a writ before high court and you will get a favourable order.

efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;...

Refer Judgement on Waiving off cooling period.

Read more at: http://www.livelaw.in/six-months-waiting-period-in-section-13b2-of-hindu-marriage-act-for-divorce-by-mutual-consent-not-mandatorysc-read-judgment/

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Under normal circumstances, the second motion will be posted after six months.

The courts cannot post the matter to one year later for the second motion,

No doubt the court may not be able to dispose the matter on the date of second motion itself, because it may send the case to mediation to obtain mediation reports, which may take a week or so and after confirmation, the case would be disposed in another week of 10 days.

You may have a second opinion from another lawyer other than your lawyer, in this regard.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

1. In which court you are goping to file the MCD petition?

2. As per law the MCD petition shall have to be decided with in 6 months.

3. After you file the MCD petition, before te District Judge it takes around 15 days to get the case sent to the appropriate Judge to hear the petition court and thereafter the MCD petition will be disposed off with in next 6 months.

4.So, MCD petition is disposed off with in 6 & 1/2 months from the date of its filing if both the parties appear on the day of the 2nd motion and there is no error made in filing or preparing the petition.

5. If the MCD petition can not be disposed off within 18 months for non appearance of one or both the parties, then it will be rejected.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

No, it is not correct at all as dates can be asked for before one year also.

Yes, it depends upon the discretion of the court to say so, but most of the time they don’t allow as the law believes in saving the marriage not breaking the marriage that is also a reason for putting two motions in it.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

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