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Priyanka (None)     03 September 2014

Help - husband doesn't appear on second motion

My husband and I filed mutual divorce.
First motion is done. He also paid some amount and returned my things.
He doesn't appear on second motion.
It been two months. My lawyer also send notice to in-laws and got no response.
 
His lawyer and none of their family members are not responding to phone calls and  replying
 
Can someone guide how to proceed?


 19 Replies

Dr J C Vashista (Lawyer)     03 September 2014

Second motion has to be filed after six months of the date of first motion and not before that. However, if he donot appear within next one year i.e., 18 months after the date of first motion, the first motion shall be invalid.

Before expiry of 18 months from first motion, send a legal notice to your husband, thereafter you may file divorce petition along with contempt of court petition.

Adv k . mahesh (advocate)     03 September 2014

before the second motion and in this two months have you not contacted and thus your lawyer should have contact with your husband lawyer and should have know why he had not turned 

Hardeep (Business)     03 September 2014

The second motion has to be filed not before 6 months and maximum within 18 months of the first motion.

if not done, then the court is not bound to pass a decree of divorce by mutual consent.

Any of the parties may withdraw their consent at any time before the passing of the decree. Free consent of both parties is the essence and unless the court is completely satisfied on this it cannot grant a decree for divorce by mutual consent.

So I am not sure if a contempt of court will hold in this case. seniors may please comment with case law, if possible. Thanks.

Happily Divorced (TL)     03 September 2014

Contempt of court? NO

Priyanka (None)     03 September 2014

First motion was done in Nov. After 6 months ,Second motion was supposed to be done in July. He doesn't appear in july though the date was decided according to them. Its now 10 months first motion is done.

My lawyer contacted his lawyer before the date and also after the date. We also noticed him but no response till date.

How to proceed from here? Shall I appeal in high court or lower court.

What is the procedure to get divorce of decree in case if he doesn't appear?

Can someone tell me the complete procedure?

Adv k . mahesh (advocate)     03 September 2014

try to talk with your husband and file a petition for second motion when he is ready before completion of the 18 months time and in this no ex-parte order will be granted and both the parties should appear before the judge and then only court will grant final decree

after second motion court may sent you both for mediation for reconciliation and if court satisfies will order directly without sending you both for mediation final decree of divorce to both of you

you can get the judgement copy within a week

Dr J C Vashista (Lawyer)     03 September 2014

@ Manas, Why so surprised for contempt, it is maintainable, did you ever try? I respectfully slighlly disagree with the expert Mr. k Mahesh. Generally the parties are not referred for counselling and/or mediation for second motion, which is only before first motion for attempting some sort of reconciliation.

Priyanka (None)     04 September 2014

Correct Dr. J C Vashista ji I was send to meditation before first  motion where my mediator was honble judge and finalized the settlement and then same judge call us in his court in 10 mins and he dictate everything to munshi and both the parties signed their. I have seen in many cases where mediator are senior lawyers and not judge. 

After a month, on first motion , we got date for second motion from court only. We both parties agree to it.

Correct me if I am wrong. He doesn't appear on the second motion both the parties mutually decided. This is contempt of court. What I believe the agreement is done between both parties in front of judge and he didn't  follow court rules. so this is not contempt of court. That he went against court. Please explain. 

We are trying to contact other party but getting no response. we will try again. If in case other party doesn't turn up, then what should I do?

Can I file a petition in court on basis of contempt of court? If yes, please guide me, what documents I need and how much time it will take?

Can I appeal high court?

Please suggest.

Dr J C Vashista (Lawyer)     04 September 2014

@Priyanka,

The statement made before a Court of law (on oath) and subsequently back-tracking tentamount to Contempt of Court.

You  should ask your advocate to procure certified copy of his (your husband's) statement for filiing 2nd motion on______(date, if specified either by the Court or parties agreed  before the Court) issue  a legal notice to him and file a petition under section 11 & 12 of The Contempt of Courts Act in the same court.

Consming time (how much) cannot be predicted as it involves number of factors like court dairy, availablility of judge and advocates of both parties, eagerness (not making excuses on the date fixed) of the court & counsels to proceed, unforeseen eventualities such as strikes etc. etc. 

Happily Divorced (TL)     04 September 2014

@Vashista Sir,

 

To my understanding this is not a fit case for contemt of court. The husband as per the agreement between the parties paid X amount in the first motion and returned her sthreedhan. He only back-tracked on the consent part. The court may not look this case as a foul ploy played by the husband.

 

For ref: Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010

1 Like

Adv k . mahesh (advocate)     04 September 2014

Mr. Vashista Sir,

i do respect your statement that in after first motion the court will grant for mediation when a cooling period of six months granted before the second motion date is given and on the mediation report and the both parties presence on second motion only the court will dissolve the marriage but Ms. Priyanka has not mentioned that mediation was conducted and only the settlement amount was paid and there are number of cases in mcd were after second motion also if judge is not satisfied will grant for mediation and finally a divorce decree will be granted 

Ms. priyanka about contempt of court is a better option for her if she has patience without any waiting she can file the same in the court and court will hear the matter and decide the divorce petition 

Hardeep (Business)     04 September 2014

I am still not clear how a contemp case lies when the Law itself asks for free consent all through the procedure.

Reading the definition of contempt :

 

(b)   civil contempt " means wilful disobedience to any judg-
          ment,  decree, direction, order, writ or other process  of  a
          court or wilful breach of an undertaking given to a court ;

So unless a clear undertaking is given to a court that the Second Motion WILL be filed for sure
within a certain time Contempt does not lie.

OTOH , if such an undertaking has been given, that runs foul of the basic spirit
of the  Section - free consent - and so can be challenged IMHO.

Request specific case law if available where Contempt has been alleged and taken cognizance of by the Court in similar cases.

Hardeep (Business)     05 September 2014

That is a good case cited by Mr. manas which details situations where Court may hold Contempt. Detailed agreement arrived in Court, reiterated many times with no objections from anyone and then much time later husband tries to resile claiming it was under duress on his lawyer's advise as necessary for Anticipatory Bail. Contempt held.

In other case cited therein resiling has been permitted as case facts different.

Anjuru Chandra Sekhar (Advocate )     05 September 2014

Even if there is any agreement signed in the presence of judge, anyone of the parties can change their mind before second motion.  If they do so, the court cannot grant MCD. Marriage laws always look for reconciliation, they do not punish if anyone of the parties finds hope in the sustenance of marital relationship after signing the pact relating to MCD.  That has no bearing on his later decision to retract and take a stand not to support divorce during second motion.  If such pact has such a binding effect, there is no reason why they should appear for second motion after six months.  It would have been granted then and there itself the moment the pact is signed between the parties.


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