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Report No. 136

4.3. Can one of the spouses who has signed a joint petition for divorce by consent not withdraw his or her consent before the court passes an order granting the prayer?

Section 13B of the Hindu Marriage Act, 1955 provides for divorce by consent:-

"13B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eightee months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

[Emphasis added]

After the initial petition for divorce is made jointly by the spouses, the court must wait for the period specified in the section. It is implicit that the consent to divorce as recorded in the initial petition, can be withdrawn by the consenting spouses before a final order is passed by the court granting the request for consent decree for divorce. But can the consent be withdrawn by only one of the spouses? According to one view, it can be so withdrawn.1-3

However, according to another view,4 the withdrawal application made by only one of the two spouses is incompetent and having once appended the signature as a joint petitioner, he or she cannot resile from the consent even though no final order has been passed by the court acting on the joint request. Once the signature is made and petition is presented, such is the view, he or she is tied down to the consent and cannot be allowed to withdraw from the constant unilaterally provided the signature made in token of the consent is voluntary and not tainted with fraud. The Delhi as well as the Bombay High Court subscribe to this view.5

1. N.G. Rama Prasad v. B.C. Vanamala, AIR 1988 Karn 162.

2. K. Krishnamurthy Rao v. Kamalakshi, AIR 1983 Karn 235.

3. Harcharan Kaur v. Nachhattar Singh, AIR 1988 Punj 27.

4. K.I. Mohan v. Jeejabai, AIR 1988 Ker 28.

5. Bombay and Delhi, see infra.

4.3.1. In the result, in one part of India a spouse who has second thoughts on the wisdom of consenting to a decree for divorce can retrieve the situation before the court passes the final order, in another part of India he or she cannot do so, though both are governed by the same statutory provision of law. Such a situation cannot be countenanced by the community, particularly m a matter relating to marital status, and the conflict on the point cannot be tolerated. The statute, therefore, deserves to be amended so that the same law has the same consequences everywhere in the country.

Conflicts in High Court Decisions on Central Laws - How to Foreclose and how to Resolve Back

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