If the couple filed for mutual divorce now, it would entail their divorce through mutual understanding and originating of issues like maintenance, custody of the children, property division, etc. However, there can be changes in circumstances once filed. Section 13B of the Hindu Marriage Act of 1955 also states that consent can normally be withdrawn before the granting of final decree as mutual consent needs to remain effective during the process of divorce.<\/p>\n\n\n\n
A mutual divorce is discussed here as a legal process in which both members of the marriage jointly agree for and file a petition for the dissolution of their marriage by demonstrating to the court their decisions to separate.<\/p>\n\n\n\n
Section 13B of the Hindu Marriage law<\/a><\/strong> provides the legal basis for mutual divorce in cases of Hindus and others governed by this statute.<\/p>\n\n\n\n As per Section 13B (1), the spouses must establish that:<\/p>\n\n\n\n The term \u201cliving separately\u201d does not necessarily mean living in different buildings. It generally refers to living apart as spouses, without maintaining the marital relationship.<\/p>\n\n\n\n The mutual divorce<\/a><\/strong> may also be available as per other applicable marriage laws, including Special Marriage Act of 1954. The precise legal provisions as well as the procedure depend on law governing the marriage.<\/p>\n\n\n\n The central principle remains that decree based on the mutual consent requires the legally valid as well as voluntary consent from both the parties.<\/p>\n\n\n\n In the initial stage of divorce proceedings, both spouses will jointly reach out to the appropriate court and file a request for the dissolution of marriage by mutual agreement. The petition must be submitted in compliance with the provisions of Section 13B (1) of the Hindu Marriage Act. The court takes into account the legal requirements as well as the situation regarding the spouses.<\/p>\n\n\n\n In this phase of proceedings, the parties may mention the terms worked out by them for settlement of matters like the following:<\/p>\n\n\n\n After considering the petition and recording the necessary statements, the court may pass an order relating to the first motion.<\/p>\n\n\n\n However, the first-motion order is not at all final decree of divorce<\/strong>. The marriage continues to subsist unless and until the competent court legally dissolves it.<\/p>\n\n\n\n Consequently, first motion does not automatically prevent either spouse from reconsidering all of their decision.<\/p>\n\n\n\n Yes. Ordinarily, either spouse may withdraw consent after the first motion but before the final decree of divorce is passed.<\/p>\n\n\n\n A mutual divorce depends on both spouses continued mutual agreement. If one spouse is no longer in favour of divorce, there can be no true mutual agreement.<\/p>\n\n\n\n For example, if the husband and wife apply for mutual divorce together and the court registers their statements in the first hearing, the wife might change her mind before the second hearing. She then tells the court that she is withdrawing her consent to divorce.<\/p>\n\n\n\n In that case, the court may not be able to grant the divorce, under Section 13B, just because the husband still wants it. The court has to find out if there is mutual consent.<\/p>\n\n\n\n Likewise, if the husband has withdrawn his consent, the wife cannot get a divorce simply based on the earlier joint application.<\/p>\n\n\n\n The important points are as follows:<\/p>\n\n\n\n The main legal provision that deals with mutual-consent divorce cases for unions which fall under the jurisdiction of the Hindu Marriage Act is Section 13B.<\/p>\n\n\n\n The first part of Section 13B discusses the joint petition for mutual-consent divorce. The second part of Section 13B talks about the proceeding and the consideration of petition after the first motion.<\/p>\n\n\n\n The law differentiates between the first petition and the court’s decision later on whether to grant the mutual-consent divorce.<\/p>\n\n\n\n Under Section 13B (2), parties to the divorce must make the second application after the specified time has elapsed. It has been understood as a time frame taking not less than 6 months and not more than 18 months from the time the petition has been filed before the appropriate authority. <\/p>\n\n\n\n The Supreme Court has stated that in exceptional cases, the requirement of 6 months can be dispensed with. <\/p>\n\n\n\n The legal importance of the entire situation is that the two aspects are distinct. That is, the waiver of the waiting period will not do away with the requirement of obtaining consent.<\/p>\n\n\n\n If marriage is governed by the Special Marriage Act of 1954<\/a><\/strong>, or any other applicable personal or the statutory law, the relevant provision must be examined fully separately. Section 13B of Hindu Marriage Act should not automatically be applied to each and every marriage in India.<\/p>\n\n\n\n When either of the spouses withdraws the consent before final decree, the proceedings may no longer satisfy all of the requirements for the mutual divorce.<\/p>\n\n\n\n The following consequences may arise:<\/p>\n\n\n\n First, the mutual-divorce petition may not proceed to a final decree. The court must determine whether the required consent continues to exist.<\/p>\n\n\n\n Secondly, the court does not have the authority to compel a spouse to agree to mutual divorce. Even if one spouse has participated in the process so far, it does not mean that he or she will not withdraw his or her consent later.<\/p>\n\n\n\n Thirdly, the parties can try to resolve their differences through reconciliation or mediation. If both want to save the marriage, they can consider finding a way to solve the dispute.<\/p>\n\n\n\n Fourthly, the other spouse might start thinking about a divorce that is contested. If there are legal grounds for a divorce, the spouse can file a separate divorce petition according to the law.<\/p>\n\n\n\n Fifth, one should realize that the terms of the settlement he or she has already reached do not work for every divorce case. Withdrawal from the divorce process means that there are still many issues that must be solved.<\/p>\n\n\n\n The court will consider all of the procedural stages, applicable law, as well as the relevant facts before determining appropriate course of action.<\/p>\n\n\n\n In most cases, the answer is no. A spouse typically cannot force the other spouse to agree to a divorce through mutual consent after the latter has withdrawn his or her consent.<\/p>\n\n\n\n Mutual consent laws are meant to create a situation where spouses are able to mutually agree on the dissolution of a marriage. They do not provide one spouse with a way to obtain a divorce in reliance on the other spouse’s prior agreement.<\/p>\n\n\n\n For example, in the case where the husband wants to proceed with the second motion but the wife no longer wants to go ahead with it, the husband cannot usually insist on the issuance of a mutual-consent decree on the basis of the original petition.<\/p>\n\n\n\n Thus, it is important to clarify that even if a spouse changes his or her mind, this does not mean that divorce cannot occur on other available legal bases. The other spouse can apply for contested proceedings and prove one of the recognized reasons for divorce provided for by law.<\/p>\n\n\n\n The following judgments are as follows:<\/p>\n\n\n\n In this case, the Supreme Court examined whether a six-month waiting period under Section 13B (2) could be waived.<\/p>\n\n\n\n The Court held that waiting period is directory rather than invariably mandatory as well as it may be waived by court in the appropriate cases, subject to any relevant considerations, including resolution of the matrimonial disputes and the absence of meaningful possibility of the reconciliation.<\/p>\n\n\n\n This decision concerns waiver of the waiting period. It does not remove the requirement that mutual consent must exist for the grant of a mutual-consent divorce.<\/p>\n\n\n\n In this case, the Delhi High Court considered whether the spouse could be compelled to participate in the mutual-divorce proceedings despite having undertaken to cooperate under settlement.<\/p>\n\n\n\n The Court reaffirmed the significance of the right to withdraw the consent under Section 13B. An undertaking in a settlement agreement does not, by itself, eliminate the spouse’s right to reconsider a decision to seek for mutual divorce. <\/p>\n\n\n\n A settlement agreement Settling agreement is one of the essential parts of mutual-divorce proceedings. It includes questions of maintenance, custody of children, division of property, jewellery, on-going litigation and other disagreements between the spouses.<\/p>\n\n\n\n But withdrawal of divorce consent is not always sufficient for answering all questions concerning the settlement agreement.<\/p>\n\n\n\n The legal effect of divorce withdrawal will depend on the wording of the settlement agreement, its incorporation in the court order, the nature of the obligations, and the applicable law.<\/p>\n\n\n\n For example: <\/p>\n\n\n\n None of the spouses should be confident that the withdrawal of consent will lead to the termination of all obligations in respect of the settlement.<\/p>\n\n\n\n Section 13B (2) of the Hindu Marriage Act introduces a mandatory six-month waiting period to be passed before a second prayer can be made to the court. The maximum time period given for submitting the application is eighteen months from the date of filing the application.<\/p>\n\n\n\n Nonetheless, the ruling of the Supreme Court in the case of Amardeep Singh v. Harveen Kaur lays down that the waiting period of six months can be waived in some cases.<\/p>\n\n\n\n The court shall take into consideration the following:<\/p>\n\n\n\n It is important to remember that waiving the waiting period does not mean that the couple loses their right to withdraw their consent at any point before the final ruling of the court on the matter.<\/p>\n\n\n\n The following practical measures may help to:<\/p>\n\n\n\n The Important precautions include:<\/p>\n\n\n\n A spouse can withdraw the consent to mutual divorce after first motion but before final decree as per Section 13B of Hindu Marriage Act, 1955. In the case of Sureshta Devi v. Om Prakash, the Supreme Court affirmed that the mutual consent must continue until decree. However, other spouse may pursue the contested divorce on the legally recognised grounds, subject to any applicable law.<\/p>\n\n\n\n One can talk to lawyer<\/a><\/strong> from Lead India for any kind of legal support. In India, f<\/a><\/strong>ree legal advice<\/strong><\/a> online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions<\/a><\/strong> to the experts online free through Lead India.<\/p>\n\n\n\n Yes. In almost all cases, a wife can withdraw her consent to the process before it ends with the final decree. This rule applies to the husband, too. In case one of the spouses does not give his\/her consent to the divorce any longer, the court usually cannot accept the motion for mutual divorce. <\/p>\n\n\n\n Normally, a husband doesn\u2019t have the right to compel his wife to consent to a mutual divorce. If a spouse does not attend the hearing, the consequences will depend on the nature of the situation and the laws, but presence at the hearing cannot be regarded as a possibility to give real consent. <\/p>\n\n\n\n Usually, it is allowed to take back the willingness to get divorced; however, one should use caution as to other responsibilities prescribed in the settlement is concerned. It will depend on the agreement and other court orders.<\/p>\n\n\n\n No. If either of the spouse withdraws the consent before the final decree, then the essential requirement of mutual consent is absent. The other spouse may then consider the contested divorce if it is legally available.<\/p>\n\n\n\n No. As per Amardeep Singh v. Harveen Kaur (2017), the court may waive 6-month waiting period in the most appropriate circumstances. The waiver does not remove requirement of continuing the mutual consent.<\/p>\n","protected":false},"excerpt":{"rendered":" If the couple filed for mutual divorce now, it would entail their divorce through mutual understanding and originating of issues like maintenance, custody of the children, property division, etc. However, there can be changes in circumstances once filed. Section 13B of the Hindu Marriage Act of 1955 also states that consent can normally be withdrawn …<\/p>\n\n
What Is the First Motion in Mutual Divorce?<\/h3>\n\n\n\n
\n
Can a Spouse Withdraw from Mutual Divorce After the First Motion?<\/h3>\n\n\n\n
\n
Legal Provisions Governing Withdrawal of Consent<\/h3>\n\n\n\n
Section 13B of Hindu Marriage Act of 1955<\/h4>\n\n\n\n
Section 13B (2): Second Motion<\/h4>\n\n\n\n
Other Applicable Marriage Laws<\/h4>\n\n\n\n
What Happens If One Spouse Withdraws Consent?<\/h3>\n\n\n\n
Can the Other Spouse Force a Mutual Divorce?<\/h3>\n\n\n\n
Important Supreme Court Judgments<\/h3>\n\n\n\n
Amardeep Singh v. Harveen Kaur (2017)<\/h4>\n\n\n\n
Vineeta Daulet Singh v. Bikkrama Daulet Singh (2023)<\/h4>\n\n\n\n
What Happens to the Settlement Agreement?<\/h3>\n\n\n\n
\n
Is the Cooling-Off Period Mandatory?<\/h3>\n\n\n\n
\n
Practical Steps After Withdrawing Consent<\/h4>\n\n\n\n
\n
Important Precautions for Both Spouses<\/h4>\n\n\n\n
\n
Conclusion<\/h3>\n\n\n\n
FAQs<\/h3>\n\n\n\n
1. Is it possible for a wife to take back her consent after submitting the first motion for a mutually agreed divorce?\u00a0<\/h4>\n\n\n\n
2. Is a husband allowed to force his wife to come to the second hearing?<\/h4>\n\n\n\n
3. Is it possible for a spouse to withdraw consent after signing the settlement agreement?\u00a0<\/h4>\n\n\n\n
4. Can the court grant for the mutual divorce if at all one spouse changes their mind?<\/h4>\n\n\n\n
5. Is six-month waiting period compulsory in each and every mutual-divorce case?<\/h4>\n\n\n\n