Sunday, 1 September 2013

Unilateral withdrawal of consent in Divorce by mutual consent


The question of unilateral withdrawal also came up before Bombay High Court in Jaya Shree Ramesh Londhe v. Ramesh Bhikaji Londhe,MANU/MH/0358/1984 : AIR 1984 Bom 302: (1984) 86 Bom LR 184. In that case the wife had filed a petition for judicial separation or in the alternative, for divorce on several grounds. Thereafter the petition was withdrawn and on the same day a joint petition for divorce by mutual consent was presented.
The parties made the usual averments, like their living separately for more than one year, not being able to live together and their mutual agreement for divorce. But later on husband changed his mind and moved an application saying that he did not want a divorce. The Trial Court dismissed the petition. Against this order an appeal was filed in the Bombay High Court, wherein it was held that once the consent was given it could not be withdrawn unilaterally by either of the parties.
The following observations of the Bombay High Court are worth taking note of:
"This position can very well be seen when we take into account the scope of an enquiry, contemplated under sub-section (2). I
have already observed that the enquiry should be more particularly directed in order to find out as to whether the averments in the petition are true or not. As far as the consent part is concerned the enquiry should obviously be with respect to the consent that was mentioned in the petition."
It will not be possible for any party who voluntarily agrees to have divorce by mutual consent to revoke or withdraw consent at a later stage. 

Bombay High Court
Smt. Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe on 15 February, 1984
Equivalent citations: AIR 1984 Bom 302, 1984 (1) BomCR 586, (1983) 86 BOMLR 184

1. This is an appeal filed by the wife against the dismissal of the petition filed by her and the respondent (the husband) under Section 13B of the Hindu Marriage Act for getting a divorce by mutual consent.
2. The marriage between the parties took place on 12-3-1981. It appears that they lived together till 24th June 1981. The wife thereafter filed Hindu Marriage Petition No. 59 of 1982 against the husband for divorce. Divorce was claimed on many grounds including that of cruelty. Of course, there was also an alternative prayer for judicial separation. There is no dispute that on 12-7-1982 the said petition was withdrawn by the wife. In the application for withdrawal it is stated that she may be permitted to withdraw the petition with liberty to file separate petition for divorce by mutual consent. The Advocate for the husband made an endorsement of 'no objection'. The Court thereafter passed a formal order about the withdrawal of the petition.
3. On the very day, i.e. on 12-7-1982, both the parties (viz., the husband and the wife) filed another application viz., Hindu Marriage Petition No. 91 of 1982, under Section 13B. This appeal arises out of the decision in that petition. In the petition the husband and the wife made the following relevant averments:--
(1) Since 24th June 1981 the husband and the wife have been living separately from each other due to several disputes and differences.
(2) It is impossible for them to live together as husband and wife and the efforts of reconciliation were futile.
(3) Both of them have mutually agreed that the marriage between them be dissolved by a decree of divorce. Both the parties, therefore, prayed for a decree of divorce. Section 13B permits such divorce by mutual consent. Under Sub-section (1), a petition for such divorce is required to be presented by both the parties on the grounds (1) that they have been living separately for a period of one year or more, (2) that: they have not been able to live together and (3) that they have mutually agreed that the marriage should be dissolved. Sub-section (2) provides amongst other things as to how a decree for dissolution of marriage should be passed after making such inquiry. Of course, that sub-section says that such an inquiry should be made if the petition is not withdrawn in the meantime. The inquiry is directed to find out as to whether the averments made in the petition are true. Such an inquiry is to be made after six months from the filing of the petition. Thus, the Hindu Marriage Petition No. 91 of 1982 was kept pending in the District Court, Thane, for 6 months. On 27th January, 1983, the husband made an application to the Court stating therein that he was not ready to give a divorce to his wife and that there was mo cause for such a divorce. He has stated that at the time when that petition was filed he was in an indecisive and vacillating mood and he was in two minds. He also stated therein that he has started feeling that he and his wife would live together happily and that, therefore, the marriage should not be dissolved. An affidavit in similar terms has been filed by him in the District Court. As against that, the wife has filed her own affidavit asserting that the contents of the Hindu Marriage petition are correct and that a decree for divorce should be passed.
4. The learned Assistant Judge heard the petition. After construing the provisions of Section 13B, he came to the conclusion that either party can withdraw the petition after thinking over the matter about divorce by mutual consent and that in this way a party can withdraw the earlier consent though not obtained by fraud, undue influence and coercion. He has also observed that if any of the parties withdraws the consent, it would not be open to the Court to go into the question as to whether the earlier consent was proper or mot or whether there was good basis for making an application for divorce by mutual consent. With this reasoning, the petition was dismissed and the wife has come in appeal,
5. I have already observed that by incorporating Section 13B the Legislature provided for a divorce by mutual consent. It: will be convenient to reproduce Sub-section (1) which reads as follows:--
"Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live; together and that they have mutually agreed that the marriage should be dissolved."
The application so made under Sub-section (1) is inquired into if, in the meantime, it is not withdrawn. Sub-section (2) provides that the Court shall, on being satisfied after hearing the parties and after making such inquiry as it thinks fit that the averments in the petition are true, pass a decree for divorce,
6. The application (Exhibit 5) made by the husband and his affidavit filed in the lower Court both together can be construed to mean that the husband wants to withdraw his consent. In addition, there are also certain averments to suggest that he wants to say that his consent was not a free consent, though there was no question of fraud, undue influence, etc. The question is as to whether a party to a joint petition for divorce by mutual consent can withdraw the petition. It was contended by Shri Tipnis that such a withdrawal by one party alone is not permissible. He argued that Section 13B contemplates a joint application by both and that a withdrawal of this type of application can be made jointly by both and not by either party. He further submitted that the scheme of Section 13B would be frustrated if it is held that after having made a joint application any party can withdraw that application and that too without the consent of the other party. Of course, he, is frank enough in stating that during an inquiry contemplated under Sub-section (2), either party can satisfy the Court that the conditions necessary for passing a decree for divorce by mutual consent were not existing at the time when the petition was filed. As against this, Shri Gokhale for the respondent submitted that the said section has made a provision for divorce by mutual consent and that so long as a decree for divorce is not passed, it would be permissible for either party to withdraw the consent and thereby withdraw the petition.
7. Section 21 of the Hindu Marriage Act provides that all proceedings under the Act shall be regulated by the Code of Civil Procedure, 1908. Of course, this would be subject to the provisions contained in the Act or the rules framed by the High Court, the Act or the rules do not make any provision as to how a proceeding under the Hindu Marriage Petition can be withdrawn. It would, therefore, be necessary to go to the provisions of the Code of Civil Procedure for finding out as to when and under which contingency a proceeding can be withdrawn. Order XXIII, Rule 1 deals with abandonment of a suit as well as withdrawal of a suit. Sub-rule (1) contemplates abandonment of a suit or part of a claim. Sub-rule (3) has made a provision for withdrawal of a suit with liberty to file a fresh suit on the same cause of action if the grounds mentioned in that sub-rule exist. Sub-rule (5) which is material reads as follows:--
"Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or 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."
8. Shri Tipnis contended that without the consent of the wife the husband would have no right either to abandon the Hindu Marriage Petition filed under Section 13B or to withdraw that petition with permission to file a fresh petition on the same cause of action. He argued that the words 'without the consent of the other plaintiffs' would
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