• Mutual divorce 2nd motion time extension

Me and my wife got married on May-2021 and separated in June-2021.We filed mutual divorce on june-2022 and completed 1st hearing in same month.2nd motion is on 12th December. I have changed my mind to save marriage and to delay the 2nd motion. Till when i can delay the 2nd motion? If my wife withdraws petition and files contested divorce, what are the consequences if she files Domestic violence,dowry and maintenance case? My salary is 98K net per month and what will be maintenance amount to pay her?what will be period for contested divorce if i want to drag?
Asked 2 months ago in Family Law
Religion: Hindu

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16 Answers

You can delay second motion till December 2023 ie 18 months from filing petition for divorce by mutual consent 

 

2) wife can file contested divorce petition seek interim maintenance alimony from you 

 

3) she can file DV case ,dowry harassment against you 

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

Hello,

  1. The second motion can be delayed by a maximum period of 18 months from the time you filed for divorce by mutual consent. Thereafter, it should get dismissed.
  2. If your wife files for divorce unilaterally, she can seek maintenance and alimony from  you along withtrhe application and they shall be decided on basis of income of the two of you which include both movable and immovable assets.
  3. If she files cases of Domestic violence, dowry harassment and maintenance, you will have to defend them in court. The consequences involves additional expenses, your family members being dragged into the cases and considerable time spend in litigation.
  4. The maintenance is not based only on the salary you draw. It depends on various factors including her employment, her needs, your life style and standard of living etc. You can anticipate approximately 35% of your salary as interim maintenance. You may be able to drag the matter between 3-5 years.

S J Mathew
Advocate, Mumbai
3430 Answers
175 Consultations

5.0 on 5.0

- As per law, the maximum period to file for a Second motion is 18 months from the date of presentation of the First Motion/divorce petition in the family court.

- Hence, if you will not file the Second motion within this period of first motion , the the First motion order will have not effect and the limitation to file the same will be vanished. 

- Yes, your wife can refuse to go for second motion and court cannot pass any direction against her , and further she will be free to file any cases against you. 

- Further, she can also ask for maintenance from you , and this amount can be one fourth of your income , however it depends upon the reply which you will file before the court after receiving her compliant. 

- Further, she can file a contested divorce petition before the Court, and the period of the case depends upon the burden of the court and not fixed. 

Mohammed Shahzad
Advocate, Delhi
10663 Answers
132 Consultations

5.0 on 5.0

wife is at liberty to file DV case and 498A case against you but allegations made in complaint has to be proved by her 

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

Hello,

  1. Regardless of the time you spend together in the marriage, your spouse can file complaints of Dv and dowry harassment against you and family.
  2. It is a matter of trial whether she would succeed in proving them in the court and get you convicted.

S J Mathew
Advocate, Mumbai
3430 Answers
175 Consultations

5.0 on 5.0

- If your marriage life is for one months , then you can mention before the Court , if she files a case under DV act 

- Since, she is your legally wedded wife, then she can claim maintenance and residential right from you , and it not depends upon how much period she has passed with you. 

- However, the cases depend upon your reply in the case. 

 

You can contact me , if further suggestion needed. 

Mohammed Shahzad
Advocate, Delhi
10663 Answers
132 Consultations

5.0 on 5.0

Hello 

 

a. You can delay filing of second motion to a maximum of 18 months.
b. In general wife does not file divorce. Instead will file domestic violence case, maintenance under section 125 of the criminal procedure code. If any such thing happens. You must have certified copy of your first motion of divorce which can be used in all the future cases.
c. The courts considering the status of parties., depending on the financial position and the working position of the wife may award up to a maximum of Rs.30,000 per month. Considering your present income. It is must to mention that nowadays it is compulsory to file income asset affidavit along with the application for maintenance, which is required to be filed by both the parties, in order to help the court to decide on quantum of maintenance. This is in view of judgement of honourable Supreme Court Rajnesh versus Neha.

 

Best of luck

Atulay Nehra
Advocate, Noida
1293 Answers
58 Consultations

5.0 on 5.0

You can appear before court during the second motion and request the court to refer the matter before the mediators for conciliation of differences between you both since you are eager to rejoin and continue the marriage.  You can request the court to adjourn the matter to some other date.

This way the court may extend the trial up to 18 months from the date of first motion and not beyond that. 

The maintenance amount shall be paid on an order by court if she files a petition claiming maintenance provided she is not employed and has no source of income to sustain her expenses.

There is no yardstick to measure the quantum of maintenance however the court may at its discretion and satisfaction of the income proved before court, it may grant up to 25% of the take home salary income. 

She cannot be prevented from filing false DV case or dowry harassment case, however since the mutual consent divorce case has already been instituted this may protect your interests as a shield during the trial of those proceedings. 

T Kalaiselvan
Advocate, Vellore
80016 Answers
1674 Consultations

5.0 on 5.0

The incidence of  of domestic violence and demand for dowry can be on a single day also, hence there is no immunity on the basis of number of days lived together. 

T Kalaiselvan
Advocate, Vellore
80016 Answers
1674 Consultations

5.0 on 5.0

You need to contest all the other cases she files. If she files contested it will proceed in court 

Prashant Nayak
Advocate, Mumbai
28570 Answers
101 Consultations

4.4 on 5.0

Dear client I am sorry to hear that but in the scales you can see withdrawal of your divorce petition at any stage of the proceeding.

Anik Miu
Advocate, Bangalore
5846 Answers
59 Consultations

4.9 on 5.0

The maximum time between the first and second motion can be 18 months.

Consequences of the cases filed by your wife depends on what evidences she leads during trial and how are cases are pleaded before the court. 

25 percent of your take-home salary is the benchmark for maintenance as per Supreme court. Rest, it depends on several other factors too and can vary from case to case.

Contested divorce cases take at least three years to be disposed off.

Siddharth Jain
Advocate, New Delhi
6203 Answers
101 Consultations

5.0 on 5.0

If you don't appear on second motion divorce case will be dismissed, if she files contested divorce case you have to defend if. If she is earning she is not entitle for any maintenance but she will be getting alimony if her divorce case succeeds. Any DV case or cruelty case filed by her will be a weak case as she has already filed a divorce by mutual consent.

Ravi Shinde
Advocate, Hyderabad
3525 Answers
42 Consultations

5.0 on 5.0

1. It's a matter of trial proceedings and to defend your interests you may have to effectively cross examine and extract truth or contradictions to nullify her allegations.

2. If you don't attend the court for confirming the decision for divorce during second motion then the court may dismiss the petition, she cannot use this as an advantageous situation for prosecuting any other case.

3. You can request the court to allow you time for reconciliation, in fact the court itself would refer the matter to mediator.

T Kalaiselvan
Advocate, Vellore
80016 Answers
1674 Consultations

5.0 on 5.0

Burden of proof is upon wife to prove allegations made in divorce petition 

 

2) she can prove allegations by relying on messages ,emails ,audio recordings between parties 

 

3) if you are unable to  attend second motion seek time and court would grant an adjournment 

 

4) only lawyer addresses the court 

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

- Since, the mutual divorce is granted on mutual consent , hence no contempt or cheating case can be filed on the refusal of second motion. 

- You can mutually fix the date of filing of second motion. 

Mohammed Shahzad
Advocate, Delhi
10663 Answers
132 Consultations

5.0 on 5.0

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