Report No. 136
4.3.5. Fallacy in the Delhi view.-
The Delhi High Court has erroneously drawn upon the analogy of a civil suit by two plaintiffs which cannot be withdrawn by only one of the plaintiffs. It has been overlooked that both plaintiffs have a joint and common interest in seeking a relief against a defendant and one of the plaintiffs cannot abandon the interest of the other. As against this in a joint petition for divorce by consent presented by two spouses, but for their consent at the stage of presentation, the interest of the two spouses is in conflict. There is no common defendant against whom they have a joint common interest to seek which cannot be abandoned by one of them at the cost of the other.
This vital distinction has been overlooked. What is more, the Delhi High Court has not shown awareness of the insurmountable hurdle presented by section 13B(2) which envisions a joint motion by both the sides (at least six months after the presentation of the petition) being made for a decree. Certainly the spouse having second thoughts cannot be compelled to make a joint motion for decree. There is no answer to this hurdle. And the High Court has attempted none. The Delhi and Bombay view is therefore altogether untenable.