ABSTRACT
The Hindu Marriage Act, (HMA) 1955 provides two distinct mechanisms for dissolution of marriage: divorce on fault-based grounds under Section 13 and divorce by mutual consent under Section 13B. The question before the courts thus arises that whether one party unilaterally withdrawing consent from a mutual consent divorce amounts to cruelty, thus consisting an independent ground for divorce under Section 13(1) (ia) of HMA, 1955. The Supreme Court has recognized that Section 13B allows a party to withdraw consent without consequences within the cooling off period. However, where one spouse induces the other to enter into a settlement, obtains benefits thereunder, and subsequently withdraws consent without justifiable cause, such conduct may inflict mental cruelty.
KEYWORDS
Mutual Consent Divorce, Mental Cruelty, Section 13B, Hindu Marriage Act, Withdrawal of Consent.
INTRODUCTION
Mutual consent divorce under Section 13B can progress only with the express voluntary consent of both parties who jointly file a petition. Traditionally, regarding the consent in a mutual consent divorce, the court in Smt. Sureshta Devi vs Om Prakash, 1991 (2) SCC 25, had held that “the consent must continue to decree nisi and must be valid subsisting consent when the case is heard.” That is, the Supreme Court held that either party is entitled to withdraw consent at any time before the decree of divorce by mutual consent is passed.
If one of the spousal party after entering into a mutual consent divorce agreement, at a later stage unilaterally and unjustifiably withdraws that consent, it can be considered a valid ground of mental cruelty to file for contested divorce under Section 13 (1) (ia) of Hindu Marriage Act, 1955 as per various judicial precedents, especially that of the Delhi High Court.
However, recent interpretations have held that if the party withdrawing the consent has done so after acting upon a settlement and making the other spouse alter his/her position, such withdrawal amounts to abuse of process.
JUDICIAL PRECEDENTS
The Supreme Court has increasingly recognised that keeping parties trapped in a dead marriage causes mental cruelty (see Ashok Hurra Versus Rupta Bipin Zaveri, 1997 (4) SCC 226, para 16). The rationale behind this is that matrimonial litigation must not be dragged on, allowing a party to withdraw consent would amount to making the other spouse believe the trauma of a broken marriage is ending, and then abruptly backing out without a valid reason causes profound emotional agony, frustration, and mental distress.
In the most recent case of Dhananjay Rathi vs Ruchika Rathi, 2026 INSC 360 or 2026 (3) KHC(SN) 16, the Supreme Court of India held that a spouse cannot withdraw consent for mutual divorce after agreeing to dissolve the marriage as part of a full and final settlement of disputes, emphasizing the binding nature of mediated settlements. Withdrawal from a settlement is permissible only in exceptional circumstances, such as: fraud, coercion, undue influence, and non-compliance by the other party.
Relevant paragraph from judgment:
“29. However, the Respondent-Wife refused to honour the terms of the Settlement Agreement and refused to sign the Second Motion Petition stating that she had withdrawn her consent from the divorce. Though it is well within the law, for any party, to withdraw consent at any stage before grant of divorce by mutual agreement, however, in case a compromise deed or a settlement agreement has been entered in between the parties regarding the full and final settlement of their disputes, then in that case it is not open for the party to step back from the terms and conditions so arrived between them.”
Further, there have been interpretations by the Delhi High stating that unilateral withdrawal of consent in a mutual consent divorce without any justifiable cause amounts to cruelty.
In ABC v. XYZ, Citation: 2023:DHC:9381-DB: the Division Bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna in the Delhi High Court dismissed the appeal filed by the wife against the decree allowing divorce on the ground of cruelty passed by the Family Court. The High Court observed, “Thus, such conduct of the appellant/wife in driving the respondent to believe that their disputes were about to be put to an end and then to withdraw from the attempted settlement can cause disquiet, cruelty, and uncertainty in the mind of the respondent. It is evident that the fight inter se the parties was not on any justifiable grounds, but was a war between the egos prompted by the desire to wreak vengeance against the spouse. Such unilateral withdrawal from divorce by mutual consent thus, amounted to cruelty.”
In the case of Beena M.S. v. Shino G. Babu, 2022 SCC OnLine Ker 778, the Kerala High Court also held that withholding of consent for mutual separation in itself would cause mental agony and cruelty to the spouse who demands separation.
Further, in Ritu Sethi vs Vivek Sethi, 2023 SCC OnLine Del 8317, the Court held that “such conduct of the appellant/wife in driving the respondent to believe that their disputes were about to be put to an end and then to withdraw from the attempted settlement can cause disquiet, cruelty, and uncertainty in the mind of the respondent. It is evident that the fight inter se the parties was not on any justifiable grounds, but was a war between the egos prompted by the desire to wreak vengeance against the spouse. Such unilateral withdrawal from divorce by mutual consent thus, amounted to cruelty.”
Most importantly, the case of Rajiv Chhikara v. Sandhya Mathur, 2016 SCC OnLine Del 6224, stands as one of the significant precedents, where the court held that such unjustified withdrawal amounts to cruelty:
“19. …….The second motion, though was filed just before the expiry of 18 months statutory period, but the appellant despite enjoying the benefits of settlement, put the respondent in a disadvantageous position and caused her mental cruelty and financial losses. An order dated January 23, 2016, of the learned Family Court proves the respondents’ voluntarily giving up of her claim of alimony and that she honoured her commitment arising out of the settlement dated May 24, 2014. Thus, the withdrawal of consent by the appellant herein without any sufficient or just cause, in the circumstances explained above, rather added to the cruelty meted to her.”
CONCLUSION
The present legal position in our country recognizes the realities of failed marriages. Courts have repeatedly emphasized that prolonged separation, endless litigation, and conduct prolonging matrimonial disputes may constitute mental cruelty. There is a statutory right under Section 13B to withdraw consent from mutual consent divorce proceedings. However, a spouse who withdraws consent without justification may still be held guilty of mental cruelty. The crux lies in finding out the intent behind the withdrawal. The spouse who withdrew consent can prove they have a legitimate, legal reason (e.g., they found out the other spouse concealed assets, committed fraud, or didn’t fulfill a vital condition of the first motion), the court will not consider it cruelty. The withdrawal must be unjustified or malicious, solely to subsist the marriage to harass the other spouse.
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WRITTEN BY: STUTI GANGOPADHYAY
