JUDGMENT :

1. Instant First Appeal is directed against the Judgment and Decree dated 27.11.2020 passed by the Principal Judge, Family Court, Allahabad in Matrimonial Case No. 1186 of 2018 (Vinay Kumar Srivastava Vs. Smt. Amita Srivastava) under Section 13B of the Hindu Marriage Act, 1955 ("Act,1955"), on withdrawal of consent unilaterally by the respondentwife when the matter came up for second motion after expiry of the cooling period for passing decree of divorce for compliance of the mandate of subsection (2) of Sec.13B of the Act,1955.

2. Brief facts of the case are that marriage of the appellant along with respondent was solemnized on 1.12.1991 according to Hindu rites & customs but on account of matrimonial differences between them, at one stage they took decision to obtain decree of divorce by mutual consent & that resulted into filing of a joint application seeking decree of divorce by mutual consent u/S.13B of the Act,1955 on 27.07.2018.

3. The Family Judge took note of the contents of the application that they are living separately for a period of more than five years and have not been able to live together. Taking note of the contents of the application for withdrawal of consent duly supported with affidavit, the Family Judge dismissed the joint application filed by the parties seeking decree of divorce by mutual consent under its order impugned dated 27.11.2020 which is subject matter of challenge in the instant First Appeal.

4. It is argued by Sri Rakesh Kumar, learned counsel for the appellant that the withdrawal of application was a malafide act of the respondent and she deserves indulgence from this Court more so when the requirement/ mandate of law has been complied with by the parties for seeking decree of divorce with mutual consent as envisaged u/S.13B of the Act and the later withdrawal of consent by her may not come in way of the appellant in getting decree of divorce by mutual consent and rejection of their joint application by the Family Court under order impugned dt.27.11.2020 needs interference by this Court.

5. Under Section 13B (1) of the Act,1955 the requirement is that the petition for divorce with mutual consent must be presented to the Court jointly by both the parties & have to fulfill three requirements envisaged under subsection (1) that they are living separately for a period of one year or more; they have not been able to live together and have mutually agreed that the marriage should be dissolved & in the instant case in their joint application it was specifically stated that they are living separately for a period of more than five years and this was the statement made by both of them when recorded by the Family Court on 27.07.2018 that they are living separately for a period of more than five years and the mandatory condition being fulfilled which was the requirement of law that they are living separately for a period of five years immediately preceding the presentation of the petition, the joint application filed by them seeking decree of divorce by consent was incompetent and that being so no order could have been passed by the Family Court and that apart further submits that subsection (1) of Sec.13B of the Act,1955 intends to give time & opportunity to the parties to revisit & seek advice of their relatives & friends and this transitional period for the parties is to revisit & reconsider their decision as to whether he/she is strict to the consent which was initially recorded at the time of presentation of the petition for divorce and such mutual consent should always continue till the decree of divorce is granted and in the instant case the respondent wife on revisiting the matter was of the view that it may not be in her interest to dissolve their marriage with mutual consent and accordingly filed application seeking withdrawal of her consent and at least after the consent being withdrawn by the respondent wife certainly no decree could have been granted of divorce on mutual consent as