How Can You Withdraw A Mutual Divorce Petition In Delhi After Filing?

Divorce, while a difficult decision, sometimes allows reflection for the parties involved. In a mutual divorce, both spouses decide to separate actually. However, upon filing, they may at times reconsider their decisions and reconcile or withdraw the petition for various reasons. Once you have filed a joint consent petition for divorce and want to withdraw it thereafter, you should know the legal aspects, process, and implications of such withdrawal.  

What is a Mutual Divorce?

Mutual divorce is governed by the no-fault doctrine, which exempts the parties from having to establish another person’s fault. Section 13B, which was inserted by the Marriage Law (Amendment) Act 1976, added divorce by mutual consent under Hindu law. It went into effect on May 25, 1976.   

Grounds for Mutual Divorce

In order to file a joint divorce petition, common consent of the partners is required so as to put on record the grounds of mutual divorce. The grounds are described below:

• For a joint application for divorce, the petition must be presented before the court.
• Petitioners must present a motion to the respective court before the hearing process commences.
• The couple must have lived apart for no less than a year to be able to file for divorce.
• The parties to the marriage cannot cohabitate at a specific residence.
• That the parties have mutually decided to dissolve the marriage.
• Parties to the marriage must wait six months after the petition for the divorce has been filed in Court.
• From the date of filing of the petition, the parties must apply before the concerned Court for a divorce decree before cutting off a period of 18 months.
• The court shall ensure that the consent of a party is free from any kind of contractors, fraud, or undue influence.

Can You Withdraw a Mutual Divorce Petition?

Let’s say one partner decides they want to keep their marriage intact. In that scenario, they can apply to the court handling their divorce, stating that they would like to revoke their consent to the divorce and give their marriage another chance. The case may be voluntarily withdrawn, and the court may reject the petition if both the husband and the wife consent to the withdrawal.

If the Divorce Petition is Withdrawn by One Spouse? What is the Other Spouse’s Remedy?

• Once the other party informs the court in writing that they are not interested in pursuing Divorce by Mutual Consent, even if the other party is willing, the court cannot give a divorce decree. This happens during the six months that the case is pending in the court.
• If the court finds that there was no legitimate or sincere reason to withdraw consent unilaterally, then the court can pass a decree of divorce and dissolve the marriage. The court, thereby, will set aside the withdrawal and decree a divorce.
• If the money is garnered after doing so and if the wife withdraws her consent, having made no effort to reconcile during the intervening seven years, then she cannot be said to have acted in good faith.
• In other cases, the wife withdraws her consent because she has filed an action under which she demands greater permanent alimony than was agreed to. This has thus been used as a means of harassment.

Landmark Judgements on Withdraw a Mutual Divorce Petition

• In the case of Jayashree Ramesh Londhe v Ramesh Bhikaji, the Hon’ble Court ruled that no party to a divorce petition can withdraw such a petition unless both parties are willing to withdraw their consent.

• In the case of Nachhattar Singh v. Harcharan Kaur, the court ruled that parties cannot withdraw their consent if all requirements of Section 13B have been met and they have filed a mutual divorce petition. 
• The test of mutual consent of both parties for a mutual consent is necessary until the divorce decree is passed. The time of six months is given at the stage of the petition in court so that the parties can have second thoughts as to whether they want to get a divorce. Both parties don’t need to withdraw their consent. It is enough for either party to do so. This was held in Sureshta Devi vs. Om Prakash.
• Later, the court held that mutual consent needs to be obtained until the decree for divorce is passed, even if it is one party not having withdrawn his/her consent during the time of the eighteen-month in Ashok Hurra v. Rupa Zaveri case.
• In Anil Kumar Jain v. Maya Jain, the Hon’ble Supreme Court held that mutual consent must remain until the decree of divorce is passed. The court further exercised the power vested by Article 142 of the Constitution of India to grant appropriate and adequate relief and to do complete justice between the rival parties before it.

Conclusion

Parties to a marriage that willingly enter into a mutual agreement and consent to mutual termination can save a lot of time and money. It is the simplest form of divorce that takes less time and requires less money compared to the time, money, and stress that a contested divorce places on the relationship.

The other option is that they can withdraw the same before filing any application before the court. The law recognizes this point and allows six months in a divorce petition, which stays pending before the court, to keep open the consent of both parties. So, if one spouse tends to change his or her mind and withdraw his or her consent during the settlement period, they can simply apply to the court. Thus, in cases where one party is not willing to consent anymore, such a party can apply to the court for a contested divorce.

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FAQs

Can a mutual divorce petition be withdrawn after filing?

Yes, a mutual petition for divorce may be withdrawn at any time before the final decree is pronounced. If both spouses agree to it, they can jointly apply for withdrawal. However, if only one party wants to withdraw, he or she can file only an affidavit expressing such intent, and the court will dismiss the petition.

What happens if only one spouse wants to withdraw from a mutual divorce petition?

A court cannot go ahead with the divorce if one spouse withdraws his or her consent. The requirement of mutual consent must be obtained throughout, according to a ruling by the Supreme Court in Suresh Devi vs. Om Prakash. In this situation, the other spouse may file a contested divorce under appropriate grounds in the Hindu Marriage Act. 

Can the court grant a mutual divorce if one party withdraws consent after filing?

No, the court cannot grant a mutual divorce if one party withdraws his or her consent before the judgment passes. However, if it finds that such withdrawal has been made in bad faith, as merely to gain some money or harass the other party, the court may pass proper orders by converting the case into one for a contested divorce.