The concept of divorce was a concept novel to Indian laws and was introduced for the first time only 8 years after achieving independence, by way of the Hindu Marriage Act, 1955. Section 13 of the erstwhile Act provided for 9 basic grounds on which either party could file a petition for divorce in a court of law. However, since the process was more often than not tedious, time-consuming and expensive, the legislature succumbed to the demands of many scholars and brought the Amendment Act of 1976 to the 1955 legislation.
By virtue of the same, they added certain revolutionary clauses. One of them was the insertion of Section 13 clause ‘B’. It provided for Mutual Consent Divorce, that is, a petition for divorce, filed jointly by both the parties. As a general rule, the consent in a mutual consent divorce should continue on behalf of both the parties till the time the divorce decree is issued. However, there can be quite a few ramifications if one of the parties decides to withdraw his/her consent. This blog provides with the possible solutions that the other party can avail in such a scenario.
However, this has not always been the case and there has been substantial development in jurisprudence. At the time when Section 13 B was inserted, the courts weren’t amenable to withdrawal of consent by one party. The logic was that since they had filed for mutual consent divorce together, the condition for free and unvitiated consent was met with at the very outset and withdrawal of the same at a later stage unilaterally by one party would be unfair to the other party. The ratio continued well into the 1980s, even a decade after the 1976 amendment. In two landmark judgments, Nacchatar Singh v. Harcharan Kaur[i] and Jayashree v. Ramesh[ii], the court has expressly held that a petition for mutual consent divorce can only be dismissed when both parties withdraw their plea and not by unilateral withdrawal of consent.
Unfortunately, what the court failed to realize was that a lot of times, the wife gave her consent by force or under influence of her family members. Moreover, in most cases, the husband got rid of the marriage easily, leaving the wife estranged. Therefore, a change came to be brought about with judgments like Hitesh Bhatnagar v. Deepa Bhatnagar[iii], that the court interpreted the amendment act to mean that consent could be withdrawn unilaterally by either party. In These kind of situations you require advice from some experts. There in cases like these one should consult expert divorce lawyers in their city, for instance if you live in a city like Lucknow you should only consult some expert divorce lawyer in Lucknow.
However, no sooner had this interpretation been given than came to arise other technical questions of law. Section 13B speaks of a cooling off period of 6 months, which can be extended to 18 months. The court was faced with questions like, ‘what if the party withdraws consent after the cooling off period?’ and it held that the cooling period was only to allow the parties a time to reconcile their differences and not a time period to think over their consent. The only that was important was the consent had to be withdrawn before the divorce decree was granted, regardless of whether the cooling off period has begun or ended.
Nonetheless, it wasn’t late before parties started taking wrongful advantage of this interpretation. Wives would often take the alimony amount in lump sum in lieu of their maintenance, from their husbands and would later withdraw their consent from the mutual consent divorce and threaten them to succumb to pay more money lest they shall not give their continued consent. This was a pitiful situation and therefore, there are several rulings which have held that:
- Consent cannot be withdrawn once the party wishing to withdraw the consent has already received a certain amount or other material pursuits in consideration of the divorce settlement.
- If the party still wishes to withdraw his/her consent, he/she will have to return to the other party whatever amount they might have received from the other party in lieu of the divorce and they would have to be restored back to the position as against each other, in which they were before the filing of the joint petition under Section 13 B.
- The other aggrieved party can further also file a civil suit of contempt against the withdrawing party. (Rajat Gupta v. Rupali Gupta & Ors.[iv][v])
If the aggrieved party still wants a divorce, he/she will have to file for a contested divorce under any of the grounds mentioned in Section 13 B. Some of these grounds include, but are not limited to[vi]:
- Conversion of Religion
- Renunciation of the world
- Person has not been found for the past 7 years
- Person suffers from venereal disease
- Person is HIV positive.
[i] Nacchatar Singh v. Harcharan Kaur, AIR 1986, Pun & Har, 201.
[ii] Jayashree v. Ramesh, AIR 1984 Bom, 30.
[iii] Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637.
[v] Rajat Gupta v. Rupali Gupta, 2018 VAD (Delhi) 54.
[vi] Section 13 of the Hindu Marriage Act, 1955.