Make joint application for amendment of divorce petition and affidavit filed in court
2)enclose affidavit in support of amendment application
3) court will permit the amendments and direct you to carry out amendments within stipulated period
Mutual Consent Divorce under Hindu Marriage Act
We have filed First Motion Petition under Hindu Marriage Act 13B(1) which was approved and posted for appearance after 6 months. 1. It is found that there was a discrepancy in the petition where a criminal case number was mistyped. 2. Also would like to rephrase one of the terms agreed example item 5.(b) to be substituted with new item. The case is in Tamil Nadu. I was told that there is no 2nd motion petition filing in the local court. Instead, it was done by proof affidavit containing all the items mentioned in the original petition. The proof affidavit filed is not joint but separately by husband and wife. My advocate advised that we can change the items in the proof affidavit and the new wording will be included in the decree. I am here to seek your advice on the correct procedure to correct the mistake made in the first motion petition. We would like to have the final decree to include the correct case number and term. Thanks
Asked 2 years ago in Family Law
Religion: Hindu
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6 Answers
It can be recitified by filing application to correct the clerical errors if same is due to over sight
It is incorrect that under Hindu Marriage Act after first motion, second motion is not in practice in Tamilnadu. Law provides two motions in mutual consent divorce under Hindu Marriage Act. To cure defect you can file application under section 153 read with section 151 & 152 CPC citing the defect and wrong mentioning of criminal case number and term etc. praying the said defect and term be rectified and accordingly the judgement passed in first motion be corrected. Depending upon order of court you can proceed further. Said application be fully supported by detailed affidavit. Also file Second motion.
If it was a typo error then in the proof affidavit a line can be added towards this error and can be pleaded to pass the decree by including the correct case number instead of the erroneous one mentioned earlier.
Besides, you have been incorrectly advised or you have wrongly heard that there is no practice of second motion in the mutual consent divorce in Tamilnadu.
Filing of proof affidavit separately by both the parties to the case itself is the second motion, i.e., by deposing evidence during the second motion is the confirmation of your decision for mutual consent divorce.
If the case number was mentioned in the original petition was incorrect and as you said it was a typo error, this can be rectified by mentioning about this typo error and can request the court to read the correct case number, through your affidavit you will be filing during the second motion.
- Since, the first motion order has already passed by the court after giving statement before the Court, then it cannot be rectified ,at this stage , and it is also not mandatory to rectified the same
- You can give correct information in the joint petition of second motion , and the contents mentioned in the second motion will be recorded for passing the divorce decree.
- Hindu Marriage Act is applied in all parts of India , and it is wrong to suggest that there is no provision of second motion in Tamil Nadu.
- Further , this 6 months cooling period can be waived after filing an application in the same court.
Dear client,
As per the Hindu Marriage Act, the first motion in a divorce petition is followed by the second motion, which is the final step in obtaining a divorce decree. However, in certain cases, courts have allowed the parties to make changes to the original petition and incorporate them in the decree, especially if the changes are minor and do not affect the substance of the agreement.
In your case, since the error in the first motion petition is a typographical error and does not affect the substance of the agreement, you can request the court to correct the error by filing an application for amendment of the first motion petition. You can also file a joint affidavit along with your spouse, stating the mistake and requesting the court to allow the correction.
Similarly, if you wish to rephrase one of the terms agreed in the original petition, you can file an application for amendment of the original petition and a joint affidavit requesting the court to accept the new wording.
The court may allow the amendments if it is satisfied that they do not materially alter the terms of the original petition and that they are bona fide. The court may also require you to provide a valid reason for the changes and may require you to pay additional court fees.
Once the amendments are allowed, you can file a joint affidavit along with your spouse, containing all the items mentioned in the original petition as well as the corrected case number and the rephrased item. The court will then incorporate these changes in the final decree.
It is important to consult your advocate for guidance on the specific procedures and requirements of the court where your case is pending, as the rules and procedures may vary from state to state.
