Mutual consent for divorce must subsist throughout the process from the initial petition to the final decree, and the withdrawal of consent by one party renders the petition liable to be dismissed.

1. Aggrieved by the dismissal of the petition filed by the appellant and the respondent jointly for dissolution of marriage by a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, the present appeal is filed. Both parties presented a petition seeking dissolution of marriage by a decree of divorce by mutual consent. On the first motion on 3.10.2011, statements of both parties were recorded by the Court. Of course, they gave mutual consent for divorce, however, when the matter was taken up during second motion on 24.4.2012 after a lapse of statutorily mandated six months' period, the respondent who is the wife of the appellant, came out with the statement that she did not want to get the marriage dissolved by a decree of divorce. In other words, she withdrew her consent for dissolution of their marriage by a decree of divorce. Appellant herein who is the husband of the respondent insisted that a decree of divorce by mutual consent should be granted as he stood by his consent.

2. Trial Court dismissed the petition as the respondent was not agreeable for dissolution of marriage by mutual consent during second motion.

3. Section 13-B of the Hindu Marriage Act, 1955, reads as under:--

"13B. 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 (68 of 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 petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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 decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

4. Both the spouses are supposed to join together in presenting a petition. Their mutual agreement to snap the marital tie should be expressed in the petition filed for divorce by mutual consent. The matter is supposed to be posted not earlier than six months. In fact, Section 13-B(2) contemplates moving of a petition by both the parties again not earlier than six months after the date of presentation of the petition under sub-section (1) of Section 13-B to enable the Court to make an enquiry for subjective satisfaction as to whether the marriage was in fact solemnized between the parties and whether the averments in the petition as to the mutual consent given by both the parties are true for the purpose of passing a decree of divorce declaring the marriage to be dissolved.

5. On a careful reading of Section 13-B of the aforesaid Act, it is found that both the parties should jointly move the petition, for dissolution of marriage. Second motion should also be moved by the parties jointly. In case the second motion as contemplated under Sub-section (2) of Section 13-B was not made by both the parties, it can be presumed that one of the parties had withdrawn his/her consent given at the first motion. Under such circumstances, the question of grant of divorce by mutual consent which shall subsist throughout right from the first motion till the second motion which culminates in passing of the decree by mutual consent, does not arise for consideration.

6. Of course, the learned counsel appearing for the appellant submitted a decision of the Bombay High Court in Rajesh S/o. Pratap Sainani v. Bhavna W/o. Rajesh Sainan