Kishan Dutt
Withdrawal of Mutual Divorce Proceedings

Withdrawal of Mutual Divorce Proceedings

                    Withdrawal of Mutual Divorce Proceedings

 

When both parties agree on the dissolution of marriage in a friendly manner, rather than battling in court and defaming each other, it is more harmonic. They can file a petition in a District Court under Section 13B of the Hindu Marriage Act, 1955, and the Court can award them a divorce decision. The divorce will not be affected by proceedings before the Panchayat; the parties must resolve it through Matrimonial Courts. The Marriage Law (Amendment) Act of 1976 included this clause not included in the Hindu Marriage Act.[1] The Hindu Marriage Act of 1955, Section 13B, is based on the same grounds as the Special Marriage Act of 1954, Section 28. Section 13B (2) states that the parties must wait at least six months after presenting the petition, and before the conclusion of the eighteen months, they must take a step forward to the court together. After reviewing the case, if the court believes all facts are accurate, it can approve the divorce petition.

The following grounds can be used to submit a petition for mutual consent divorce:

  1. Both parties must bring the petition to the court at the same time.
  2. Both parties shall file a motion before the court hearing the petition.
  3. Parties must live apart for a period of one year.
  4. Parties are unable to cohabitate.
  5. The parties mutually decided that the marriage should be dissolved.
  6. The parties must wait for a minimum of six months before proceeding. The six-month period began when the parties filed a divorce petition with the court.
  7. Concerned parties must file an application with the court for a decree before the eighteen-month period expires from the day the petition is filed.

According to Sec 23(1) (bb) of the Family Law Act, permission in the case of mutual consent divorce shall not be gained by fraud, force, or undue influence as per Sec 23(1) (bb) of the Hindu Marriage Act,1955

 

Can consent be withdrawn in mutual consent divorce?

Suppose one partner changes their mind and wishes to salvage their marriage. In that case, they can make an application with the court where their divorce is being processed, declaring that they want to withdraw their permission for the divorce and give their marriage a second opportunity. If both the husband and wife agree to the withdrawal, the case can be amicably withdrawn, and the court can dismiss the petition.[2]

If one spouse withdraws the divorce petition? What remedy does the other spouse have?

If one spouse files an application with the court stating that they do not wish to pursue Divorce by Mutual Consent, the court will not give a divorce decree. It is possible during the six months when the petition is pending in court.[3]

If the court determines that the unilateral withdrawal of consent is not genuine, it might issue a divorce judgment and dissolve the marriage. As a result, the court will disregard the withdrawal of consent and issue the decree.

It cannot be regarded as an actual act if the money is taken later and the wife withdraws her permission and has not made any effort to reconcile in the past seven years.

In other circumstances, the wife withdraws her permission by filing a court action to demand more permanent alimony than what was agreed. The act of withdrawing can be used as a means of harassment.

Is it possible to withdraw the permission after filing for Divorce by Mutual Consent?

In Jayashree Ramesh Londhe v Ramesh Bhikaji,[4] the court decided that neither party can withdraw from the joint petition for divorce unless and until both parties consent to the withdrawal.

In the case of Nachhattar Singh v Harcharan Kaur[5], the court decided that once the parties voluntarily submit a petition for divorce by mutual consent and all of the requirements set out in Section 13B(1) of the Hindu Marriage Act, 1955 are met, the consent is irrevocable.

In the case of Sureshta Devi vs. Om Prakash,[6] the court found that mutual consent should exist unless and until a divorce decision is issued. The six-month time frame was chosen to allow the parties to change their minds. Both parties are not required to modify their minds. A single party can also do it.

Later, in the case of Ashok Hurra v Rupa Zaveri, the court held that mutual consent should be maintained until the divorce judgment is issued, even if one of the spouses does not withdraw their consent within the 18 months.

In Anil Kumar Jain vs. Maya Jain, the court noted that consent obtained by the parties when filing the petition must be maintained until the case is brought up for order and a divorce judgment is issued. The Supreme Court can issue many directions to offer comprehensive justice to the party while exercising its exceptional power under Art. 142 of the Constitution.

If the party withdrawing the consent does not convey it to the court, either directly or via their counsel, the court will assume the consent to be ongoing.

The Rajasthan High Court's Division Bench ruled that an affirmative act must withdraw the party's permission to divorce at the time of the second motion.

If there is no sufficient reason for the withdrawal of permission, the court will assume that the consent was withdrawn under duress. After jointly consenting to divorce, one party withdraws their approval, which is considered mental cruelty.

In the case of Suman vs. Surendra Kumar[7], the husband did not appear at the second stage after filing a joint divorce petition. Because one party had abandoned the case, the Family Court decided that mere silence did not constitute a withdrawal of consent. As a result, the conclusion must be reached in favor of consent rather than the absence of consent. In the case of Suman vs. Surendra Kumar, the husband did not appear at the second stage after filing a joint divorce petition. Because one party had abandoned the case, the Family Court decided that mere silence did not constitute a withdrawal of consent. As a result, the conclusion must be reached favoring consent rather than the absence of consent.

 

Conclusion

Opting a mutual consent divorce avoids squabbles and saves a significant amount of time and money. Mutual consent divorce is one of the best-provided possibilities, considering the increasing number of divorce applications As a result, it is the simplest type of divorce and the least expensive and time-consuming compared to disputed divorce. It is an easy and hassle-free divorce method, too, because even during the six months between the first and second motions, any party can withdraw by submitting an application with the court saying that they do not want to get a divorce by mutual consent. The opposite party would only have one choice in such a situation: petition for disputed divorce. Hence It is the shortest type of divorce, saving time, money, and even mental anguish.

*****



[1] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf.

[2] https://www.scconline.com/blog/post/2020/11/09/divorce-by-mutual-consent-and-contempt-of-court/.

[3] https://vakilsearch.com/advice/can-mutual-divorce-be-done-after-6-months/.

[4]https://indiankanoon.org/doc/921070/#:~:text=Jayashree%20Ramesh%20Londhe%20vs%20Ramesh%20Bhikaji%20Londhe%20on%2015%20February%2C%201984&text=JUDGMENT%20B.C.%20Gadgil%2C%20J.&text=This%20is%20an%20appeal%20filed,a%20divorce%20by%20mutual%20consent.

[5] https://indiankanoon.org/doc/1265343/.

[6] http://ijtr.nic.in/Smt._Sureshta_Devi_vs_Om_Prakash_on_7_February,_1991.PDF.

[7] AIR 2003 Raj 155

 

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