Clarification for filing second motion
rajinderkumararora
(Querist) 28 May 2015
This query is : Resolved
A petition U/S 13(B)(i) (first motion) for dissolution of marriage with mutual consent was filed in the last week of January, 2015. The statements of the parties have been recorded in the second week of March, 2015. Though the statements of the parties were signed by the respective parties and witnesses, the same has not been signed by the Hon'ble Judge, who has fixed the next date of hearing to discuss a point mentioned in the Memorandum of Understanding attached with the petition regarding the time for filing the second motion.
Under the circumstances, kindly clarify whether the second motion can be filed in July, 2015 i.e. after six months from January, 2015 when first motion was filed or 6 months will be counted from the date of the order to be issued by the Hon. Judge after discussing the point mentioned in the Memorandum of Understanding attached with the petition regarding the time for filing the second motion. for which next date of hearing has been fixed.
Devajyoti Barman
(Expert) 28 May 2015
The things you have mentioned in unheard of at least at this part of India.
6 months is to be counted from the date of filing of the case.
In your case some unknown procedure is adopted by court.
T. Kalaiselvan, Advocate 
(Expert) 29 May 2015
I agree with the views of expert Mr. Devajyoti Barman. The second motion is not filed, it is automatic. Consult your lawyer on further issues.
Kuummaar AS
(Expert) 29 May 2015
In Section 13B(2) of Hindu Marriage Act, the wording is “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…”. Thus, the date of presentation of the petition, as mentioned in sub-section (1) should be the key factor for reckoning date of filing of Second Motion.
In a case Ritu Preti Kapoor vs Vineet Perti on 22 July, 2011 in the Hon. High Cout of Delhi the HON'BLE MR. JUSTICE KAILASH GAMBHIR has mentioned, inter alia, that once the petition is filed by the parties, the date of the second motion under Section 13B(2) of the Hindu Marriage Act necessarily has to be reckoned from the date of the filing of the motion and not from the date of the recording of statements. In para 6 of the judgement, it is mentioned that “Adverting to the facts of the case at hand, both the parties moved the petition for divorce by mutual consent, that is, the first and second motion were preferred by the parties simultaneously and admittedly this was the practice in courts earlier when the courts were taking a liberal view and dispensing with the said statutory period of six months between the presentation of the first and the second motion in granting final divorce under Section 13B of the Hindu Marriage Act."
Although the above case relates to reckoning of the date of second motion from limitation point of view, it is felt that this should very well apply to reckoning of six months period for filing of second motion and accordingly such reckoning should be from the date of filing of first motion and not from the date of order of the Hon. judge.
