Report No. 136
4.3.2. Which view deserves to prevail and how to amend the law?-
Before forming an opinion on the issue, the reasoning which has commended itself to the respective High Courts in support of the two divergent views needs to be examined. The High Court of Delhi which holds the view that consent 'cannot' be withdrawn by only one of the spouses unilaterally reasons:-1
1. Chander Kanta v. Hans Kumar, AIR 1989 Del 73.
'9. Sub-section (2) provides that if the petitions is not withdrawn in the meantime, on a joint motion made by the parties not earlier than six months after the date of the presentation of the first petition referred to in sub-section (1) and not later than 18 month after the said date, if the Court is satisfied after hearing the parties and after making inquiries that a marriage has been solemnized and the averments in the petition are true, it can pass a decree of divorce. Though sub-section (2) of section 13B envisages withdrawal of the joint petition, if does not prescribe the procedure for withdrawal of the joint petition.
I also do not find any other provision in the Act o the Rules dealing with withdrawal of a joint petition presented under section 13B(1) However, section 21 of the Act provides that subject to the other provisions contained in the Act and to such Rules as the High Court may make in this behalf, all proceedings under the Act shall be regulated, as far as may be, by the Code.
Thus, it is necessary to refer to the provisions dealing with withdrawal and abandonment of plaint in the Code. Order 23, rule 1 prescribes the procedure for withdrawal and abandonment of a suit. Sub-rule 5 of rule 1 of Order 23 specifically deals with the power of the Court to permit withdrawal or abandonment of a suit or part of a claim presented jointly by one or more plaintiffs. Sub-rule (5) of rule 1 of Order 23 reads thus:
"(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suitor part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs."
Thus, when the suit is filed by two or more plaintiffs, the Court cannot permit one of the several plaintiffs to abandon a suit or part of a claim without the consent of the other plaintiffs.
10. Section 13B(1) of the Act also contemplates joint presentation of a petition. It is similar to a suit filed jointly by one or more plaintiffs:, Thus just as a suit or part of a claim cannot be abandoned or withdrawn by one plaintiff, one of the parties to the petition cannot be permitted to withdraw the petition or abandon the prayer without the consent of the other party. In other words a petition presented under section 13B(1) of the Act cannot be also withdrawn by one party unilaterally. Of course, if the Court is satisfied that the consent was not a free-consent and it was the result of force, fraud or undue influence then it is a different matter because in such a case the court is empowered specifically to refuse to grant the decree.
The Legislature introduced section 13B in the Act by Marriage Law (Amendment) Act, 1976 to provide for a speedy dissolution of marriage when it is found that the marriage is irretrievable. The Legislature provided for an interval of a period of six months between the first motion and the second motion in order to afford the parties further opportunity for reconciliation. If one party is allowed to withdraw the consent even when other grounds, namely that the parties continue to live separately and have not been able to live together still subsist and reconciliation is not possible then it will frustrate the very purpose of the enactment.
Very precious time of one of the parties who has waited for over six months for filing the second motion will be wasted and a party who wants to harass and is guilty of abuse of the process of the Court will benefit. This position is made further clear by insertion of sub-section (bb) to section 23(1) of the Act. Under this section, the Court is empowered to grant the decree even in as undefended case if it is satisfied that the averments in the petition are true and the consent for mutual divorce has not been obtained by force, fraud or undue influence.
In my opinion, since the second motion as contemplated in section 13B(2) has to be a joint motion section 23 would come into operation in a case like the present one when one of the parties refuses to join in the second motion and the other party has no alternative but to make an application to the court for orders on the petition already presented under section 13B(1) of the Act before the specified time of 18 months expires. If unilateral withdrawal of consent is permitted the Court will not be able to pass a decree to an undefended case under section 23(bb) of the Act. I am thus unable to accept the contention of the learned counsel for the respondent that he could unilaterally withdraw the consent without proving that the consent was obtained by force, fraud or under influence.'