Petition not filed for mutual divorce before 18 months

514 votes

In order to answer your issue:
Please note that 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 either spouse delay giving a statement or appearing before Court, under such circumstances neither you nor the court can compel the spouse 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 spouse 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.

Furthermore, if your lawyer does not file the Petition before 18 months, then the Divorce will not be granted and the spouse will have to withdraw the Petition however a negative inference will be drawn against you in the proceedings. It is better to make an application before Court and inform them that you are withdrawing your consent.

Advocate Anuj Nair LawRato

614 votes

In that case you have to file both the motion once again which you can file collectively requesting the judge to allow both the petitions in the peculiar facts and circumstances of the case. As now already a substantial period expired.

Advocate Amar Nath Saini LawRato

718 votes

Hello ma'am. I have perused your query. In the absence of a filing for second motion with the consent of both parties, a divorce by mutual consent will not be granted. Further, in such a scenario consent of either party cannot be compelled. You would have to withdraw your petition and file for contested divorce. Please feel free to reach out to me in case you wish to discuss the matter in more detail.

LawRato LawRato

985 votes

Hi if the lawyer doesnt file the second petition of mutual divorce, you should engage a new lawyer who will file the second motion alongwith judgements and condonation application citing reasons for delay.
For more information feel free to have a word with us, all the very best.

Advocate Sahej Uban LawRato