Reaffirmation of the Right to Withdraw Consent Before a Mutual Divorce Decree Under Section 13-B of the Hindu Marriage Act

Introduction

The High Court of Orissa in the case of Doyel Dey v. The Judge, Family Court, Balasore & Another revisited and clarified the legal position regarding the right of a spouse to withdraw consent in a mutual divorce proceeding before the final decree is passed. In this case, the petitioner-wife sought to set aside the impugned judgment which had dissolved her marriage on the basis of mutual consent under Section 13-B of the Hindu Marriage Act, 1955, despite her unilateral withdrawal of consent prior to the pronouncement of the decree.

The petitioner (wife) and Opposite Party No. 2 (husband) were married on February 12, 2018. Subsequently, differences arose, leading the couple to jointly file a petition for divorce by mutual consent. However, before the decree was pronounced, the petitioner-wife withdrew her consent. The Family Court, Balasore, proceeded to grant the decree of divorce, prompting the petitioner to challenge its correctness. Key issues included whether one spouse could unilaterally withdraw consent prior to the pronouncement of a mutual divorce decree, and whether the Family Court erred in granting a decree of divorce notwithstanding such withdrawal.

Summary of the Judgment

The Orissa High Court, presided over by Justice G. Satapathy, allowed the writ petition filed by the petitioner-wife, setting aside the decree for divorce on mutual consent granted under Section 13-B of the Hindu Marriage Act. The High Court relied on binding precedent from the Supreme Court, which affirms that the consent for divorce must continue up to the point of the final decree. The Court concluded that since the petitioner had withdrawn her consent before the decree was passed, the Family Court’s decision to grant a divorce decree on mutual consent was erroneous and unsustainable.

Consequently, the High Court remitted the matter back to the Family Court for fresh disposal in accordance with law. It also directed the trial court to expedite proceedings within six months.

Analysis

A. Precedents Cited

The primary precedent cited in this Judgment is the Supreme Court decision in Smt. Sureshta Devi v. Om Prakash [AIR (1992) SC 1904]. This landmark ruling laid down the principle that the consent of both parties in a mutual divorce under Section 13-B of the Hindu Marriage Act must subsist up until the point that the final decree is granted. The Supreme Court categorically stated that if any party withdraws consent before the decree is pronounced, the court cannot grant a divorce under mutual consent.

In the present Judgment, Justice G. Satapathy reiterated this principle, emphasizing that once the wife’s consent was unilaterally withdrawn, the basis for the mutual divorce collapsed, making it legally impermissible for the Family Court to proceed with a decree of divorce.

B. Legal Reasoning

The High Court’s reasoning rested on the clear language of Section 13-B of the Hindu Marriage Act, 1955, which mandates the court to be fully satisfied that both parties continue to consent to the divorce at the time the decree is passed. The statutory requirement is that:

There must be a joint petition for divorce by mutual consent.
Upon the filing of this joint petition, the court usually grants a six-month “cooling-off” period (though this can be waived in certain circumstances).
Only when the court is satisfied that the parties have continued to consent to the divorce can it pass the final decree.

In this case, although the parties initially consented to divorce, the petitioner-wife withdrew her statement of consent prior to the pronouncement of the final decree. Therefore, the foundational element of “mutual” consent was no longer in force. The High Court underscored that mutual consent is the essential precondition and must remain in effect right up to the pronouncement of the decree.

C. Impact on Future Cases and the Relevant Area of Law

This Judgment reiterates a cardinal principle in matrimonial jurisprudence under Hindu Law: the moment one spouse retracts consent before the final decree, the court cannot proceed with mutual divorce. The Orissa High Court's stance ensures rightful protection for spouses who may have been coerced or who may have had a change of heart, but had no recourse if an earlier statement of consent was deemed “final.”

For future cases, this ruling cements the requirement of sustained consent in a mutual divorce proceeding. Trial courts are reminded to remain vigilant that both parties persist in their consent. Parties likewise gain clarity on the procedure and potential consequences of withdrawing consent. This will influence not only how parties approach Section 13-B petitions but also how practitioners advise clients contemplating a mutual divorce.

Complex Concepts Simplified

Several key legal concepts appear throughout the Judgment. Below are simplified explanations of the most central ideas:

Divorce by Mutual Consent Under Section 13-B of the Hindu Marriage Act: This is a special provision enabling a married couple, who mutually agree that their marriage is beyond reconciliation, to jointly apply for a divorce. After presenting their joint request, the court gives them time (usually up to six months) to reconsider. Only if they both still wish to proceed once the waiting period ends can the court grant the decree.
Sine Qua Non: A Latin phrase meaning “an essential condition” or “indispensable requirement.” In the context of this Judgment, continued mutual consent is the indispensable requirement for the passage of a mutual divorce decree.
Withdrawal of Consent: This refers to any action taken by one of the spouses to inform the court that they no longer agree with the terms of the mutual divorce. It effectively ends the possibility of a divorce decree on mutual consent, unless the other spouse can proceed under other legal grounds for divorce.
Remitting the Matter: When an appellate or higher court sends a case back to the trial court (or Family Court in matrimonial matters) for rehearing or further proceedings in accordance with law.

Conclusion

In Doyel Dey v. The Judge, Family Court, Balasore & Another, the Orissa High Court has provided a clear and decisive restatement of the principle that a valid decree for divorce by mutual consent cannot be granted once a spouse unilaterally withdraws consent prior to the pronouncement of the decree. Guided by the Supreme Court’s ruling in Sureshta Devi v. Om Prakash, the Court emphasized that mutuality must endure through the entire proceeding.

The Judgment highlights the protective stance of the law, making sure that the unique requirements of a dissolution of marriage by mutual consent are upheld. This ensures that the dignity, autonomy, and rights of both spouses remain paramount. Furthermore, it preserves the integrity of proceedings under Section 13-B of the Hindu Marriage Act by confirming that courts must verify the sustained consent of both spouses right until the final decree is pronounced.

Overall, this directive from the Orissa High Court serves as an important checkpoint for matrimonial courts and practitioners, ensuring that the essential ingredient of mutuality remains firmly intact whenever a divorce on mutual consent is granted.