FAMILY LAW ASSIGNMENT

Question: Rajeev and Reshma, a Hindu couple were living separately for nearly 5 years
owing to incompatibility of their temperaments. On Rajeev’s suggestion, Reshma agreed to
seek divorce by mutual consent and they filed a petition for divorce under section 13-B of the
Hindu Marriage Act, 1955. However after 6 months, Reshma refused to go to court again
with Rajeev, saying that she had changed her mind as she did not wish to lead the life of
divorcee. Rajeev prays to the court that divorce be granted to him on the basis of first
petition.
Analyse the situation with relevant legal provisions and case laws in this regard. 
In the instant case, Rajiv and Reshma filed for divorce under Section 13B of the Hindu
Marriage Act, 1955 which enumerates the law pertaining to divorce by mutual consent. One
of the basic essential ingredient to obtain divorce through mutual consent is that both the
parties i.e. husband and wife mutually agree to obtain divorce.
Essential Ingredients of Section 13B of the Act:-
● A divorce petition is presented by both the parties before the District Court.
● The provision applies to marriages solemnised before or after the commencement of
the Marriage Laws (Amendment) Act, 1976.
● The parties to the marriage should have been living separately for a period of one year
or more.
● The parties should satisfy the Court that they have not been able to live together and
that they have mutually agreed that the marriage should be dissolved.
● Period of Interregnum- The petition should not have been withdrawn within six
months after the date of the presentation of the petition and not later than eighteen
months after the said date.
In Suman v Surendra Kumar1, the Rajasthan High Court answered the question of why period
of interregnum is given. It is intended to give time and opportunity to the parties to reflect on
their move. In this transitional period either of the parties or both of them may have second
thoughts.
Procedure of Divorce by Mutual Consent:-
1. First Motion involves joint filing of divorce petition.
2. Husband and Wife appear before Court to record statements after filing of petitions.
3. Court examines petition, documents, tries reconciliation, records statements.
4. Court passes order of First Motion.
5. Cooling off period of 6 months given to couple by Court to rethink decision.
6. Filing of Second Motion is done within 18 months of First Motion.
7. Decree of Divorce is passed by the Court.
In Rajeev and Reshma’s case, the 5th step is over which means the cooling off period is
completed. Now the question is whether any of the parties can step back or resile from
undertaking for divorce given under Section 13B (1) of the Hindu Marriage Act, 1955.
However the main question here is if Reshma is allowed to withdraw after the passing of the
first motion.  Shikha Bhatia vs. Gaurav Bhatia & Ors. and Avneesh Sood vs. Tithi Sood, the
Delhi High Court had opined that a spouse, who gives an undertaking to the court to abide by
the consent given in the First motion for dissolution of marriage under Section 13B (1) of the
Act and for moving a Second motion petition, cannot be permitted to resile from such an
undertaking on the basis of an agreement arrived at between the parties.
In Rajiv Chhikara vs. Sandhya Mathu, the Division Bench of Delhi High Court opined that
resiling from a settlement amounts to mental cruelty. Hence in such circumstance one spouse
insists of retaining the matrimonial bond then the same would be like putting the spouse
under intense situation of mental cruelty.
On the other hand, the Kerala High Court, Punjab and Haryana High Court and Rajasthan
High Court held that it is open to one of the spouses to withdraw the consent given to the
petition at any time before the court passes a decree of divorce.
In Smt. Sureshta Devi vs. Om Prakash 2, on interpreting Section 13B(2) of the Act and
analyzing the divergent views expressed by different High Courts, the Supreme Court
approved the view expressed by the High Courts of Kerala, Punjab & Haryana High Court
and Rajasthan on the interpretation of Section 13B(2) of the Act and held:
That from the analysis of the Section, it will be apparent that the filing of the petition with
mutual consent does not authorise the court to make a decree for divorce. There is a period of
waiting from 6 to 18 months. This interregnum was obviously intended to give time and
opportunity to the parties to reflect on their move and seek advice from relations and friends.
In this transitional period one of the parties may have a second thought and change the mind
not to proceed with the petition. The spouse may not be party to the joint motion under sub-
section (2). There is nothing in the Section which prevents such course. The Section does not
provide that if there is a change of mind it should not be by one party alone, but by both.

1 AIR 2003 Raj 155

2 1991 SCR (1) 274
At the time of the petition by mutual consent, the parties are not unaware that their petition
does not by itself snap marital ties. They know that they have to take a further step to snap
marital ties. Sub- section (2) of Section 13-B is clear on this point. It provides that “on the
motion of both the parties‖ …. if the petition is not withdrawn in the meantime, the Court
shall pass a decree of divorce.
What is significant in this provision is that there should also be mutual consent when they
move the court with a request to pass a decree of divorce.
Secondly, the Court shall be satisfied about the bonafides and the consent of the parties. If
there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a
decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a
divorce decree even at the instance of one of the parties and against the consent of the other.
Such a decree cannot be regarded as decree by mutual consent.
In Smruti Pahariya vs. Sanjay Pahariya 3, wherein the Apex Court endorsing the decision in
Sureshta Devi case stated that it is only on the continued mutual consent of the parties that a
decree for divorce under Section 13-B of the said Act can be passed by the court. It was also
opined that courts cannot presume consent of a party merely because both the parties are
signatories to the First motion under Section 13B of the Act.
So it is established now that Reshma is very well within her rights to withdraw her consent at
any stage before the decree of divorce is passed. Now the next question is would the reason
for withdrawal make any difference.
Furthermore the next major question remains the importance of the reason.Rajesh R Nair vs.
Meera Babu, the Division Bench of Kerala High Court held that it is not for the court to
probe into the bona fides or reasonableness of withdrawal of consent and once consent is
withdrawn, the only option available to the Court is to close the matter at that stage.
Another important question is if the withdrawal of consent amounts to contempt of court. The
answer is yes as reiterated in Dinesh Gulati vs. Ranjana Gulati, wherein the appellant
husband took recourse to contempt proceedings against the respondent/wife on a grievance
that despite a mutual consent recorded before the Family Court to dissolve their marriage, the
wife was not cooperating with the husband. Also in the cases of Shikha Bhatia vs. Gaurav
Bhatia & Ors. And Avneesh Sood vs. Tithi Sood, the Delhi High Court, it was held any
attempt to resile there from after giving consent in the First Motion would amount to a breach
of the undertaking accepted by the court and therefore, attract contempt proceedings.
Does this mean Rajeev will not be granted divorce at all?
No, Rajeev will not be able to avail divorce by mutual consent in the absence of Reshma’s
consent but if he feels the irreconcilable differences cannot be fixed, he can always pursue
contested divorce. In which case the following procedure has to be adhered to:
1. Filing of petition by Rajeev.
2. Court issues summons and seeks reply from Reshma.
3. Court may suggest reconciliation.
4. Examination and cross examination of witnesses and evidence.

3 2009 (8 ) SCR 631 

5. Counsels for both parties can present final arguments.
6. Decree of divorce passed by the Court.