S.13B Hindu Marriage Act | Consent For Divorce Can Be Unilaterally Withdrawn By A Party Even After Conclusion Of Arguments: Orissa HC

The Orissa High Court has recently held that consent for divorce can be unilaterally withdrawn by a spouse anytime before the passing of decree granting divorce on the basis of mutual consent, even after conclusion of arguments.

Reiterating the significance of 'mutual consent' of spouses for grant of divorce under Section 13-B of the Hindu Marriage Act, the Single Bench of Justice Gourishankar Satapathy observed –

“…the law as has been explained by the Apex Court reveals that any of the spouse can withdraw consent unilaterally and consent being the essence of grant of decree of divorce U/S. 13-B of the Hindu Marriage Act, no decree of divorce can be passed U/S.13-B of Hindu Marriage Act, 1955, if any of the parties withdraws such consent just passing of decree.”

Factual Background

The marriage between the petitioner-wife and the opposite party-husband was solemnised in the year 2018. After residing together for some years, they decided to go for divorce by mutual consent due to certain marital dissensions. Accordingly, they mutually filed an application under Section 13-B of the Hindu Marriage Act.

The conciliation was done, final arguments on behalf of the parties were heard and judgment was reserved. But before the judgment and decree could be drawn, the petitioner-wife unilaterally withdrew her consent for grant of divorce.

However, notwithstanding such withdrawal of consent, the Family Court dissolved the marriage between the parties on the basis of mutual consent. Being aggrieved by such decision of the trial Court, the petitioner-wife filed this writ petition.

Contentions of Parties

The counsel appearing for the petitioner relied upon Smt. Sureshta Devi v. Om Prakash to submit that the Court cannot pass decree on mutual consent if any of the spouses withdraws his/her consent before passing of the decree of divorce. Notwithstanding such legal and factual position, the trial Court granted decree of divorce on mutual consent, which is erroneous and liable to be set aside.

On the other hand, it was submitted on behalf of the opposite party-husband that not only the conciliation between the parties was over, but also the argument was also concluded when the petitioner withdrew her consent and thus, the petitioner could not have withdrawn her consent unilaterally.

Court's Observations

The Court noted that though both the parties filed the application for grant of divorce by mutual consent, the wife withdrew her consent unilaterally after conclusion of final arguments and just four days before the decree of divorce was passed. Hence, it became incumbent for the Court to decide as to whether the decree of divorce could have been passed in such factual scenario.

To elucidate the position of law in this regard, the Court went through the observations made by the Apex Court in Sureshta Devi (supra) wherein it was held as follows:

“If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce U/S.13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce.”

In the present case, the petitioner withdrew her consent on 18.11.2021, but the judgment was passed on 22.11.2021.

“In this case, although the writ petitioner has withdrawn her consent just 04 days before the passing of decree, but the learned trial Court notwithstanding to such fact has dissolved the marriage between the parties on mutual consent U/S. 13-B of the Hindu Marriage Act, which is not only erroneous, but also unsustainable in the eye of law and liable to be set aside,” it held.

Accordingly, the impugned judgment of the Family Court was set aside and the matter was remitted back to the concerned Court for fresh disposal.

Case Title: Doyel Dey v. The Judge, Family Court, Balasore & Anr.

Case No: W.P.(C) No. 39609 of 2021

Date of Judgment: January 03, 2025

Counsel for the Petitioner: Ms. Sailabala Jena, Advocate

Counsel for the Respondent: Mr. Sanjay Pattanaik, Advocate

Citation: 2025 LiveLaw (Ori) 2

Click Here To Read/Download Order