Can Consent Be Withdrawn After Filing for Divorce by Mutual Consent in India?

Divorce by mutual consent is often seen as one of the most amicable ways to dissolve a marriage under Indian law. It allows both spouses to part ways peacefully, agreeing on terms like alimony, child custody, and division of property in their mutual divorce agreement. However, the process isn’t finalized the moment the petition is filed. The law provides specific provisions that allow either party to withdraw their consent at certain stages, reflecting the need for both parties to remain fully committed to the divorce until the very end. Let’s delve deeper into this legal aspect.

Understanding Divorce by Mutual Consent

Under Section 13B of the Hindu Marriage Act, 1955, divorce by mutual consent involves a clear two-step process: filing an application and obtaining the court's approval.
1. First Motion:
   -Filing the Petition: Both spouses file a joint petition in the family court, stating that they have been living separately for at least one year and that they have mutually agreed to dissolve the marriage. The petition must also outline the terms of the settlement, including issues like maintenance, child custody, and property division.
   -Living Separately: The term "living separately" doesn’t necessarily mean physical separation but rather indicates that the couple is not living as husband and wife. They might be living under the same roof but without marital relations.

2. Second Motion:
   - Cooling-Off Period: After the first motion in the divorce proceedings, the law mandates a waiting period of six months before the couple can approach the court for the second motion. This period is intended to give the couple time to reconsider their decision.
   - Final Hearing: After the cooling-off period, both parties must reaffirm their consent to the divorce. The court then examines the case, ensuring that the consent is voluntary and that all settlement terms are fair and just. If satisfied, the court grants the divorce decree, legally dissolving the marriage through the divorce proceedings.

Withdrawal of Consent

1. Withdrawal Before Second Motion
- Legal Right to Withdraw: Either spouse has the absolute right to withdraw their consent at any time before the second motion is passed. This is a significant legal provision that upholds the importance of mutual consent throughout the divorce process.
- Court’s Response: If one party withdraws their consent for divorce, the court will not proceed with the divorce. The mutual consent divorce cannot be granted if mutuality ceases to exist at the time of the second motion.

2.Withdrawal After the Second Motion
- Finality of the Divorce: Once the second motion is completed and the court has granted the divorce decree, the marriage is legally dissolved. Consent cannot be withdrawn after this point because the divorce is final and binding.
- No Legal Reversal: After the decree is issued, there is no provision for either party to withdraw consent or challenge the divorce on the grounds of consent.

Grounds for Withdrawal

- Change of Heart: During the six-month waiting period, one spouse may have second thoughts about the divorce. This is quite common as the reality of separation sets in, leading one or both spouses to reconsider their decision.
- Coercion, Fraud, or Misrepresentation: If a spouse believes that their consent for divorce was obtained through coercion, fraud, or undue influence, they have the right to withdraw consent. The court will examine these claims to ensure that consent was genuinely given.

Court’s Role in Withdrawal of Consent

The court plays a crucial role in ensuring that the withdrawal of consent is not being misused in the context of divorce proceedings. If one spouse withdraws consent, the court will usually inquire into the reasons to ensure that the decision is not influenced by external factors like family pressure or financial manipulation. However, the court cannot compel a mutual consent divorce if one party is unwilling to proceed with the petition for divorce.

Implications of Withdrawing Consent

- Continuation of Marriage: If consent is withdrawn before the final decree in the divorce petition, the marriage remains legally intact. The couple is still married in the eyes of the law, and they must continue to live separately if they do not wish to reconcile.
-Potential for Legal Disputes: Withdrawal of consent can lead to prolonged legal battles. If one spouse withdraws consent and the other still wishes to proceed with the divorce, they might have to file for divorce on other grounds, such as cruelty, desertion, or adultery, leading to a contested divorce.
- Emotional and Financial Impact: Withdrawing consent can also have emotional and financial repercussions. The process can become more stressful, time-consuming, and costly if the divorce turns contested.

Conclusion

The ability to withdraw consent after filing for divorce by mutual consent is a significant legal safeguard in India. It ensures that both parties are fully committed to the decision to divorce at every stage of the process. However, this provision also introduces the possibility of complications, especially if one spouse has a change of heart during the divorce proceedings. Couples considering a divorce petition by mutual consent should be fully aware of the legal implications and potential challenges that could arise from the withdrawal of consent. Seeking legal advice early in the process can help in navigating these complexities and ensuring that the decision to divorce, if taken, is executed smoothly and amicably through the proper divorce petition.