First motion to second motion: what happens at each hearing in the Ghaziabad Family Court

Filing

Joint petition under Section 13B with affidavits and the settlement, at the Family Court, Ghaziabad.

First motion

Both spouses present. Statements recorded. Reference to mediation.

The wait

Six months, unless waived under Amardeep Singh. Not more than eighteen.

Second motion

Statements recorded again. Decree of divorce.

Most people who come to Chamber 817 for a mutual consent divorce know that there are two hearings. Fewer know what is done at each, why both spouses have to be there, and what the court is checking. This article walks through the petition from filing to decree as it happens in the Family Court at the District Court Complex, RDC, Ghaziabad.

Filing the joint petition

The petition under Section 13B is one document signed by both spouses. It states when and where the marriage took place, that the spouses have lived separately for one year or more, that they have not been able to live together, and that they have agreed to dissolve the marriage. The settlement is annexed. Each spouse swears an affidavit verifying the petition. The nominal court fee is paid by stamp and the petition is filed at the Family Court filing counter, where it is registered and given a number and a date.

Where the facts support it, the application for waiver of the six-month period is filed with the petition, and where a spouse is abroad, the application for recording the statement by video. The documents article lists what goes on the file.

The first motion

On the first date both spouses appear before the judge with their advocate. The judge reads the petition and the settlement and then speaks to each spouse, usually separately. The questions test the three things the Act requires and the one thing Section 23(1)(bb) forbids: that the spouses have in fact lived apart for a year, that they cannot live together, that they both want the marriage dissolved, and that nobody has obtained their consent by force, fraud or undue influence. The judge also asks about the settlement: whether it covers everything, whether the money has been paid or the articles returned, whether the cases between the families have been withdrawn.

The answers are recorded as the statement of each spouse, read over, and signed. The statements are the record that the second motion and the decree rest on, so a spouse who is unsure about a date or a term says so before signing rather than after. The court then refers the couple to the mediation centre in the court complex, as the Family Courts Act requires it to attempt reconciliation. In a settled case the mediation is short and the report says the parties stand by their petition.

The six months, and when they are not six months

Section 13B(2) says the second motion cannot be moved earlier than six months after the first, and must be moved within eighteen. The six months is the cooling-off period. Since Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, the Family Court can waive it where the spouses have been separated for eighteen months before the first motion, mediation has failed, every issue is settled, and the wait would serve no purpose. The waiver application, filed with the petition, is taken up once the first motion statements and the mediation report are on the file. The waiver article sets out the conditions and what the judge asks.

Where the waiver is not sought or not granted, the six months run from the first motion. The chamber uses that time to see that the settlement is performed: the alimony paid into the account named in it, the stridhan returned against a receipt, the pending cases withdrawn or the quashing petition filed at Allahabad. A second motion at which the settlement has been performed is a short hearing. One at which it has not been performed is where petitions fail.

The second motion

Both spouses appear again. The judge confirms that each still consents, records a second statement to that effect, and checks that the settlement has been carried out as the first statements said it would be. Where everything is in order, the court is satisfied that the marriage has broken down and that the consent is free, and it passes the decree of divorce under Section 13B(2). The decree is drawn up by the court office, and the chamber applies for a certified copy, which is the document a spouse needs for a passport, a remarriage or a property record.

Withdrawal of consent

Consent has to exist at the time of the decree, not only at the filing. Either spouse can withdraw it at any point before the second motion is decided, by stating so before the court, and the petition then fails. There is no decree against a spouse who has withdrawn. This is the risk in every Section 13B petition, and it is the reason the settlement is structured so that performance and decree go together: alimony paid before the second motion, or secured so that it is paid on the decree; stridhan returned against a receipt; pending cases withdrawn on the day of the decree or by an undertaking recorded in it. A spouse who has received everything and then withdraws consent faces the consequences of the undertaking, and a spouse who has paid everything and is then refused is protected by the record of what was paid and why.

What can go wrong, and how it is avoided

• A spouse does not turn up. The motion is adjourned. Repeated absence after the first motion is treated as withdrawal. Dates are fixed around both spouses' availability before the petition is filed.
• The two statements disagree on the date of separation. The judge refuses the waiver and may question the petition itself. The date is fixed with documents before filing.
• A pending case is discovered at the hearing. The court will not proceed until the settlement deals with it. Every case between the families is listed in the petition.
• The eighteen-month limit passes. The petition lapses. The chamber diarises the outer date at the first motion.
• A spouse abroad cannot appear. The application for video recording is filed with the petition, not at the hearing. See the NRI article.

Run properly, a mutual consent divorce in Ghaziabad is two hearings, a settlement performed in between, and a decree that neither spouse will appeal. The chamber at Chamber 817 has run many, and the first meeting is where it tells you which of the risks above applies to your file and how it will be handled.

Read next

• Cooling-off period waiver: the Amardeep Singh test
• Documents for a Section 13B petition in Ghaziabad
• Mutual consent divorce or contested divorce

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