Generally, when mutual consent divorce is filed from Husband as well as from the wife side at the time of first motion some money is handed over to the wife side to the husband side and at the second motion next installment is to be paid.

No wife or husband can come under influence of many elements and do not turn up for 2nd motion petition.

So the question is whether the consent can be withdrawn in case the wife or husband withdraw to get into second motion.

The answer to this is negative as per the Hon’ble P&H high court Nachhattar Singh Vs. Harcharan Kaur

On the motion of both the parties made not earlier than six months after the date of 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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.’ A reading of this sub-section would show that the scheme of S. 13Bof the Act does not envisage withdrawal of consent by one party. The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same. Six months after the date of the presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties, the Court has to satisfy itself, after haring the parties and after making such inquiries as it thinks fit, that the petition was in fact presented by both the parties to the marriage, that they have been living separately for a period of one year or more and that they have mutually agreed that the marriage should be dissolved. If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual constant and all the other conditions mentioned in sub-section (1) of S. 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In. the present case, without making an inquiry under sub-sea (2) the trial court had dismissed the petition as withdrawn which could not be done merely on the asking of one party.”

The main reason to withdraw the consent can be undue influence, force coercion etc.

Otherwise court can grant divorce.

Nitish Banka

Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997