Divorce by Mutual Consent - Wife is entitled to withdraw her consent for passing a decree of divorce by mutual consent before passing of the decree.

1. This petition filed by the petitioner-wife questions the legality of order dated 30-1-2003 passed by the learned Additional District Judge, Rewari whereby the trial Court on a petition filed by the parties under Section 13-B of the Hindu Marriage Act, 1955 (in short "the Act") for divorce by mutual consent had framed an issue whether the consent of the wife at the time of presentation of petition under Section 13-B of the Act was obtained by force, fraud or undue influence.

2. Briefly, both the parties filed a Joint petition under Section 13-B of the Act for granting a decree of divorce by way of mutual consent. The marriage between the parties was solemnised on 29-1-2001 as per Hindu rites and ceremonies at Rewari. No issue was born out of the said wedlock and the relations between them were not cordial from the very beginning. Both the parties have been residing separately since May, 2001. All efforts for reunion and reconciliation having failed between the parties, they resolved to get their marriage dissolved by mutual consent. Accordingly, petition under S. 13-B of the Act was filed jointly on 11-5-2002. Joint statement of the parties was recorded and the case was adjourned to 16-11-2002 for waiting the statutory period of six months and for recording their statements.

3. After about three months on 12-8-2002, the petitioner-wife appeared before the trial Court and filed an application for withdrawing her consent and her statement to that effect was recorded by the trial Court. The wife levelled allegations that her consent had been obtained by force, fraud and undue influence. The trial Court issued notice of the said application for 16-11-2002. The petitioner-wife thereafter also filed an application for dismissal of the petition for divorce by mutual consent. The trial Court instead of dismissing the petition for divorce by mutual consent had framed the following issue :-

"1. Whether the consent of petitioner No. 1 at the time of presentation of this petition was obtained by force, fraud or undue influence, as alleged ? If so to what effect ? Rupali (Petitioner No. 1)."

4. It is this order of the trial Court which has been assailed in this revision petition.

5. Counsel for the petitioner submitted that under Section 13-B of the Act the consent of the wife on the date of dissolution of marriage is to be seen and since the petitioner-wife has not agreed for dissolution of marriage, the husband cannot insist for a decree of divorce on the basis of consent at the time of filing the petition for divorce by mutual consent. He placed reliance on the judgement of Division Bench of this Court in Harcharan Kaur V/s. Nachhattar Singh, AIR 1988 Punj. and Har. 27. He, thus, submitted that the trial Court had erred in framing the issue as noted above.

6. No one has appeared on behalf of the respondent to contest the petition.

7. I have heard the counsel for the petitioner and perused the record.

8. Section 13-B of the Act reads thus :-

"13-B. Divorce by mutual consent.- (1) 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.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petitioner referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a