Waiver of Second Motion: Mandatory or Discretionary

Sejal Makkad | Amity Law School, Amity University Chhattisgarh | 29th May 2020

AMARDEEP SINGH V HARVEEN KAUR CIVIL APPEAL NO. 11158 OF 2017

Facts: 

The parties, Amar deep and Harveen got married in the year 1994. They also had two children till 2003. They were living happily as a family till year 2008 but, due to some criminal as a well as civil disputes, they started living separately. After 2008, they continuously lived apart till 2017. In 2017, they filed for divorce by mutual consent. The court granted for permanent alimony to harveen for some amount and also it was decided that the appellant will hols the custody of one child.

The divorce was filed in the month of April and in the month of May, the parties filed for waiver of period of six months for second motions. As per the parties, both were living separately in the past 8 years and there was no chance for them for any compromise. For getting the waiver, the parties moved to Supreme Court.

Issues: 

Whether the power of court under Article 142 of Constitution was mandatory or discretionary in relation to Section 13B (2) of Hindu Marriage Act?

Judgement: 

It was held by the Supreme Court that the power of waiver of second motion was discretionary on the following basis:

• The waiver of second motion should be filed within one week of completion of first motion.
• The court is of contention that all the things such as alimony, custody have been well settled between the parties.
• The time period of the six months can cause increase in the agony between the parties.
• The period of 1 year has been previously granted by the court under section 13B (1) but, there was no rehabilitation between the parties.

All the grounds and also other additional grounds depending on the facts of the case must be satisfactory to the court for granting the waiver of second motion.

Reasoning: 

The power of court under this condition as per Article 142 of Constitution is not mandatory because in some cases due to speedy trials, the cases go in a wrong way and the decisions taken lead to chaos. Therefore, it is important for the court to take care of the circumstances as to avoid faults in the decisions.