Divorce by Mutual Consent: Waiver of time for second motion

Divorce by mutual consent

Requirement is that such divorce shall be given by way of two motions. Second requirement of section 13-B of Hindu Marriage Act is that second motion can be entertained only after expiry of six months after the first motion is accepted by the court.

Question is whether the said period is directory or mandatory? In other words, can the court waive the said period and accept second motion before expiry of said period?

Decision:

Where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

i) 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;

ii) all efforts for mediation/conciliation including 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;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.

[Source: Amardeep Singh vs Harveen Kaur, decided by Supreme Court on 12 September, 2017]

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