A party cannot unilaterally withdraw a petition for divorce by mutual consent. The consent of both parties is required for withdrawal, and such consent cannot be revoked later.

JUDGMENT - B.C. GADGIL, J.:---This is an appeal filed by the wife against the dismissal of the petition filed by her against the respondent (the husband) under section 13-B 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 There is no dispute that on 12-7-1982 the said petition was withdrawn by the wife.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 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 13-B. 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 13-B 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 six months. On 27th January, 1983, the husband made an application to the Court setting therein that he was not ready to give a divorce to his wife and that there was no 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 of divorce should be passed.

4. The learned Assistant Judge heard the petition. After construing the provision of section 13-B, 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 not or whether there was good basis for making an application for divorce by mutual consent. With this reasoning th

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