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Report No. 136

4.3.6. Why the Commission commends the view that consent can be withdrawn by any one of the spouses unilaterally.-

There are five good reasons which induce the Commission to conclude that the view that the consent can be withdrawn even unilaterally at any time before the final order is passed by the Court as held by the High Court of Punjab, Karnataka and Kerala (differing from the High Courts of Bombay and Delhi):-

(1) Consent of both the spouses must subsist till the passing of the final order by the Court granting a decree for divorce by consent. No decree by consent can be passed on the basis of a one-time consent accorded in the past at the point of time when the petition was signed and lodged. It would be unfair and incongruous for the court to pass a decree in the face of the clear assertion by one of the spouses that there was no "consent on his or her part at the point of time of passing the so-called consent decree" in a matrimonial matter having serious repercussions on the life and future status of the spouse who, on further reflection after appending the signature, has doubts abut the wisdom of doing so.

(2) There is no basis in logic or law for freezing the option of the consenting spouse as on the date of presentation of the petition seeking a divorce by consent.

(3) The legislative mandate embodied in section 13B(2) compelling the two spouses to wait for six months before moving the court, by necessary implication, provides the clue to the discernible purpose of the provision, viz., to grant time for 'reflection' as also for possible reconciliation pursuant thereto, viz., precondition enjoined.

(4) The 'motion' for decree for divorce by consent being required to be made by "both" of the spouses cannot be complied with in case one of the spouses is not prepared to join in making the motion. Surely the spouse who no longer consents cannot be 'compelled' to join in moving a motion for a decree as enjoined by section 13B(2).

(5) To pass a decree by consent in the face of the express assertion by one of the two spouses that there was no consent at the really crucial point of time of passing the final order would be in total negation of the letter and spirit of the law.

The Commission accordingly has no hesitation in recommending that an Explanation be added to section 13B to the effect that the consent of both the spouses reflected in the joint petition must subsist at the point of time when the court passes the final order granting the decree as prayed.

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