Husband delaying 2nd motion for mutual divorce. What can be done?
What legal steps can I take against my husband who is not signing the petition for the second motion of our divorce proceedings? I got married in 1989 and we have 2 children. We filed in for a mutual divorce wherein the first motion was completed and signed last year but at the time of the second motion that was due on 1st May 2014, my husband started making excuses and postponing the motion.
He says he doesn’t have time and will lose his job. I don’t even demand alimony from him but I want a divorce. What should I do?
In order to answer the issue, Section 13 B of the Hindu Marriage Act is required to be noticed:
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 solemnized 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized 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.
A close reading of section 13-B of the Hindu Marriage Act, 1955, makes it amply clear that a divorce by mutual consent can be granted only if both the parties appear voluntarily on the First motion as well as on the Second motion.
If he is delaying to give a statement or appear before the court, under such circumstances neither you nor the court can compel him to appear and make a statement.
However, at this stage you can only take an adjournment till 18 months (maximum) and in the meanwhile you make efforts out of the court to convince your spouse to come to the court and give the statement.
Even after making efforts, if your husband does not agree to appear, then the option available to you is to withdraw the petition and file a petition under different grounds as enumerated under Section 13(1) of the Hindu Marriage Act.
Kindly contact us for any further details and action.
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