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Report No. 136

4.3.4. The contrary view that consent can be withdrawn by one of the two spouses unilaterally is supported by the reasoning unfolded in this passage:1

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

"9. With great respect to the learned Judge of the Punjab and Haryana High Court we are unable to agree, that after a petition is signed and filed in Court by both the parties under section 13B(1) it cannot be withdrawn by one of them. The very condition prescribed in section 13B(2) of the Act namely that the petition has to be considered on the motion of both the parties, means, if one of the parties declines to join the other to make a motion for consideration of the petition on merits, after six months after the date of presentation of the petition, consideration of the petition on its merits becomes impossible.

Therefore, it is clear that while it is open for both the parties to withdraw the petition jointly, it is also open to one of the parties at her or his option, not to join the other to make a motion for consideration of the petition, in which event, the Court has no power to consider the petition on its merits. That is what happened in this case. Therefore, the learned Judge had no option than to dismiss the petition. In fact as shown earlier the appellant himself in his objection to the application for maintenance, has stated so, though he has contended to the contrary in this appeal.

10. Our view receives support from a Division Bench judgment of this Court in Krishnamurthy Rao v. Kamalakshi, AIR 1983 Kant 235. In that case Jagannatha Shetty, J., (as he then was) held that the consent, in the context of passing a decree for divorce, must subsist on the date of hearing. Therefore, consent given on the date of petition is not final and irrevocable.

If so, there was no necessity for the Legislature to impose the two conditions in section 13B(2) viz., (1) bar for consideration of the petition for a period of six months and (2) the consideration of the petition could be only on the motion of both the parties. Therefore, we are of the view that the respondent was entitled to withdraw the consent for divorce given in the petition and when she did so the Court was right in dismissing the petition, indeed it had no other option."

[Emphasis added]

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