Second Motion Mutual Consent Divorce Affidavit under Section 13B(2) of the Hindu Marriage Act

This page provides a sample affidavit format for the second motion of a mutual consent divorce under the Hindu Marriage Act, 1955, together with the current statutory framework, waiting-period rule and important procedural points.

Important legal distinction: Section 13B(1) governs presentation of the joint petition for divorce by mutual consent. Section 13B(2) governs the later motion on which the court may pass the decree of divorce. Accordingly, a "second motion" is properly referable to Section 13B(2).

Section 13B of the Hindu Marriage Act, 1955: Divorce by Mutual Consent

Section 13B(1) permits both spouses to jointly present a petition for dissolution of marriage by mutual consent when they have been living separately for at least one year, have not been able to live together, and have mutually agreed that the marriage should be dissolved.

Section 13B(2) deals with the second motion. The statutory text provides that the motion is to be made not earlier than six months after presentation of the petition under Section 13B(1) and not later than eighteen months after that date, provided the petition has not been withdrawn. The court must hear the parties, make such inquiry as it considers appropriate, and be satisfied that the marriage was solemnised and that the petition's averments are true before passing the decree.

Official text: Hindu Marriage Act, 1955 - India Code.

How the Second Motion Works

The second motion is the stage at which the parties request the court to act on their continuing mutual consent and dissolve the marriage. In practice, the parties may be required to confirm the settlement concerning permanent alimony or maintenance, return of articles or stridhan, custody and visitation of children, withdrawal or disposal of connected cases, and any other agreed terms relevant to their dispute.

Use the settlement clauses carefully: Child custody, child support, maintenance, property and pending-proceeding clauses are fact-specific. A sample affidavit should not state that a parent permanently gives up a child's legal rights or maintenance merely because similar wording appeared in another matter. The final document should reflect the actual settlement and applicable law.

Can the Six-Month Waiting Period Be Waived?

Yes, in an appropriate case. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period in Section 13B(2) is directory rather than invariably mandatory. The competent court may waive it where the circumstances justify waiver, including where the statutory separation period is already over, reconciliation efforts have failed, the parties have genuinely settled their differences, and further waiting would only prolong their situation.

The Supreme Court reaffirmed the discretionary character of waiver in Amit Kumar v. Suman Beniwal (2021). Waiver is not automatic; it must be considered judicially on the facts of the particular case.

Official judgments: Amardeep Singh v. Harveen Kaur and Amit Kumar v. Suman Beniwal.

Sample Affidavit for Second Motion Mutual Consent Divorce

The following is a general sample based on the substance of the existing format. Names, dates, payment terms, custody provisions, pending proceedings and local court requirements should be adapted before filing.

IN THE COURT OF THE _____________ JUDGE AT _____________

H.M.A. PETITION NO. __________ OF 20__

IN THE MATTER OF:

MRS. ______________________________
PETITIONER NO. 1

AND

MR. _______________________________
PETITIONER NO. 2

AFFIDAVIT IN SUPPORT OF SECOND MOTION UNDER SECTION 13B(2) OF THE HINDU MARRIAGE ACT, 1955

I, Ms. __________________, wife of __________________, daughter of __________________, aged about ______ years, presently residing at ________________________________, do hereby solemnly affirm and state as follows:

1. That I am Petitioner No. 1 in the accompanying proceedings for dissolution of marriage by mutual consent under Section 13B of the Hindu Marriage Act, 1955, and I am fully acquainted with the facts and circumstances of the case.

2. That I have read and understood the contents of the accompanying second-motion application/petition and reaffirm the statements made therein, except to the extent specifically modified by the settlement or subsequent events.

3. That the marriage between Petitioner No. 1 and Petitioner No. 2 was solemnised on _____________ at _____________ according to Hindu rites and ceremonies.

4. That the parties have been living separately since _____________ and have not been able to live together as husband and wife.

5. That all reasonable efforts at reconciliation have failed and the parties continue to mutually agree that the marriage should be dissolved by a decree of divorce.

6. That the parties jointly presented the first-motion petition under Section 13B(1) of the Hindu Marriage Act, 1955, before this Hon'ble Court on _____________.

7. That the statements of the parties in the first motion were recorded on _____________ and the first-motion proceedings were disposed of/passed in accordance with law.

8. That the parties continue to live separately and there has been no resumption of matrimonial cohabitation after the date stated above.

9. That the parties have voluntarily settled their matrimonial disputes and the settlement remains acceptable to both parties as on the date of this affidavit.

10. That the terms concerning permanent alimony/maintenance, if any, are as follows: ________________________________________________.

11. That the terms concerning return of stridhan, jewellery, articles, property or other financial claims, if any, are as follows: ________________________________________________.

12. That the parties have the following child/children from the marriage, if applicable: ________________________________________________.

13. That the agreed arrangements concerning custody, visitation and financial support of the child/children, subject to applicable law and the welfare of the child, are as follows: ________________________________________________.

14. That the status and agreed manner of disposal/withdrawal of connected civil, criminal, domestic violence, maintenance or other proceedings, if any, is as follows: ________________________________________________.

15. That a sum of Rs. _____________ has already been paid/received under the settlement, and the balance amount of Rs. _____________ is to be paid at the stage and in the manner agreed between the parties.

16. That any instrument or mode of payment proposed at the second-motion stage is described as follows: demand draft/transfer details ________________________________.

17. That neither party has obtained the other's consent to the mutual consent divorce by force, fraud or undue influence.

18. That the consent of the deponent to dissolution of the marriage by mutual consent continues to subsist and is given freely and voluntarily.

19. That there is no collusion intended to mislead the Court, and the parties have disclosed the material facts relevant to the relief sought.

20. That there is no legal impediment, to the knowledge of the deponent, to grant of the decree of divorce by mutual consent.

21. That the deponent respectfully prays that this Hon'ble Court may allow the second motion and dissolve the marriage between the parties by a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955.

Signed at _____________ on this ______ day of _____________, 20__.

DEPONENT

VERIFICATION

I, the above-named deponent, verify that the contents of paragraphs 1 to 21 of this affidavit are true and correct to my knowledge and belief, that no material fact relevant to this affidavit has been concealed, and that nothing stated herein is false.

Verified at _____________ on this ______ day of _____________, 20__.

DEPONENT

Attestation/notarisation and the precise verification form should conform to the rules and practice applicable to the court in which the matter is filed.

Section 23(1)(bb): Free Consent

When divorce is sought by mutual consent, the court must be satisfied that consent has not been obtained by force, fraud or undue influence. This is an express statutory safeguard under the Hindu Marriage Act.

Consent Must Ordinarily Continue Until the Decree

The Supreme Court has explained that, under the ordinary Section 13B procedure, mutual consent must subsist when the court considers the second motion. If a party validly withdraws consent before the decree, the ordinary mutual-consent jurisdiction cannot be exercised merely on the basis of the earlier agreement. See Hitesh Bhatnagar v. Deepa Bhatnagar.

Family Court Jurisdiction

Where a Family Court has been established for the relevant area, matrimonial proceedings are ordinarily dealt with by that court under the Family Courts Act, 1984. The Act is intended to promote conciliation and speedy settlement of disputes concerning marriage and family affairs.

Family Courts Act, 1984 - India Code

Practical Filing Checklist

  • Confirm the first-motion filing date and order.
  • Confirm whether the six-month period has elapsed or a waiver application is required.
  • Ensure both parties still consent to the divorce.
  • Check that settlement payments and return of articles are accurately recorded.
  • State the actual status of custody, visitation, maintenance and connected proceedings.
  • Carry identification and documents required by the concerned Family Court or District Court.
  • Follow the applicable High Court rules, Family Court rules and local filing practice for affidavits and attestation.

Disclaimer: This sample is for general legal-format information. Court practice, affidavit requirements, settlement wording and filing procedure may vary by jurisdiction and facts. The document should be adapted to the actual case before filing.