Consent for divorce by mutual consent cannot be unilaterally withdrawn unless obtained by force, fraud, or undue influence.

( 1 ) RULE. Since the respondent did not appear after service and publication, the matter has already been proceeded ex parte against the respondent.

( 2 ) THIS petition under Article 227 of the Constitution of India challenges the order dated 31. 3. 2004 passed by Additional District Judge who declined to modify and rectify the order dated 1. 10. 2003 and for passing decree of divorce under Section 13-B (2) of the Hindu Marriage Act, 1955 (hereinafter referred to as act ).

( 3 ) IN a troubled marriage there were pending criminal matters and divorce proceedings. Eventually divorce by mutual consent and settlement of all criminal and civil disputes was agreed to by both the spouses resulting inter alia in the wife withdrawing her criminal complaints and dropping all claims towards maintenance for herself and her daughter. The husband enjoyed all the benefits of the settlement and then remarried and has a child from the second marriage and yet withdrew his consent for divorce by mutual consent leading to the situation where by the impugned judgment the learned additional District Judge has declined to grant divorce to the petitioner/wife by permitting the unilateral withdrawal of mutual consent by the respondent/ husband leading to the present petition under Article 227 of the Constitution.

( 4 ) THE facts of the case as per the unrebutted averments in the writ petition are as under:

(A) The marriage between the petitioner/wife and the respondent/ husband who are both Hindus, was solemnized on 12. 3. 1996 according to Hindu rites and ceremonies. (b) That on 11. 12. 1997 one female child was born and the said child is in the custody of the petitioner. (c) After the marriage the petitioner was subjected to cruelty and humiliation by the respondent and was the victim of harassment caused by respondent for continuous demand of dowry, by beating and torturing the petitioner at the instigation of his parents with desire to fulfil the demand of dowry and cash which led to continuous mental tension, cruelty and agony to the petitioner. Under compulsion and torturous circumstances the parents of the petitioner paid lot of money to the respondent on demand and also arranged separate accommodation so that the matrimonial life of the petitioner may not get disturbed. (d) That because of violent behaviour and greedy nature of the respondent, the petitioner was thrown out by the respondent from the matrimonial home. It is not in dispute that since 7th February, 2002 both the parties are living separately. (e) That on 18. 2. 2002 the respondent/husband filed a petition under section 10 of the act for judicial separation before the District judge, Delhi and on 1. 5. 2002 petitioner filed a complaint under sections 498-A/406, IPC before Dowry Cell. (f) On 15. 7. 2002 the petitioner filed an application under Section 24 of the Act for maintenance before the Additional District Judge, Delhi after she put in her appearance on the receipt of summons in the above matter. (g) That on 16. 9. 2002, the respondent moved an application before the learned ADJ for withdrawal of his petition under Section 10 which declined by the said Court. (h) That on 8. 9. 2003 both the parties compromised their disputes and entered into a compromise deed. By virtue of the settlement under the said compromise the parties filed an application under Order 6 Rule 17 read with Section 151. CPC for amendment converting the petition under Section 10, Hindu Marriage Act into a petition under section 13 (B) (1) of the Hindu Marriage Act for divorce by mutual consent. (i) Along with the application for amendment both the parties filed their affidavit in support as well as both the petitions under sections 13-B (1) and 13-B (2) of the said Act for dissolution of their marriage by way of mutual consent together with the compromise deed and prayed for waiving the stipulated period of 6 months and permission to place on record the petition under Section 13-B (2) alo