Under Section 13B of the Hindu Marriage Act, 1955, mutual consent must exist continuously from the filing date until the final decree is signed at the Second Motion. Either spouse holds the legal right to unilaterally withdraw consent before the Second Motion is concluded. The Family Court cannot grant a mutual divorce against the will of an unwilling spouse. However, the withdrawing spouse cannot retain alimony or stridhan obtained during the First Motion, and the aggrieved partner can immediately seek restitution of funds, revive compounded criminal cases, or file a contested divorce on grounds of mental cruelty.
THE STATUTORY REALITY OF SECTION 13B HINDU MARRIAGE ACT
Mutual consent divorce in India is structured as a two-stage judicial procedure under the Hindu Marriage Act, 1955. Spouses first present a joint petition under Section 13B(1) to record their formal statements in the First Motion. Following a statutory consideration interval, the parties must jointly move the court under Section 13B(2) for the Second Motion, leading to the dissolution of the marriage.
The core legal question that often creates uncertainty is whether a spouse who signed the First Motion is legally bound to complete the Second Motion.
The statutory mandate is clear: mutual consent is not a permanent agreement created at the initial filing. It is a continuous state of shared intent that must remain active and voluntary until the judge formally signs the final decree. If one spouse refuses to sign the Second Motion, fails to appear in court, or files a formal revocation of consent, the Family Court loses jurisdiction to dissolve the marriage under mutual terms.
LANDMARK JUDICIAL PRECEDENTS ON UNILATERAL CONSENT WITHDRAWAL
The Supreme Court of India settled this legal issue in the landmark decision of Smt. Sureshta Devi v. Om Prakash. The Court held that mutual consent must continue to exist when the court is called upon to pass the decree of divorce.
The Court ruled that either party has the unfettered freedom to reconsider their decision and withdraw consent at any point prior to the passing of the final decree. The Family Court cannot grant specific performance of a marital contract to force a dissolution of marriage against a person’s explicit will.
WHAT HAPPENS TO ALIMONY, STRIDHAN, AND PROPERTY TRANSFERRED AT FIRST MOTION?
In most settlement structures, a substantial portion of permanent alimony, maintenance drafts, stridhan jewelry, or property share is handed over at the time of the First Motion.
If a receiving spouse takes these assets and subsequently refuses to cooperate for the Second Motion, the law protects the paying spouse against unjust enrichment:
- Application for Restitution:
The prejudiced spouse can file an urgent application before the Family Court seeking an order for the immediate refund of all demand drafts, cash, or properties transferred under the settlement terms.
- Breach of Court Undertaking:
When settlement conditions are formally recorded in court statements or signed before an institutional mediation center, walking away after enjoying financial benefits amounts to a breach of undertaking given to the court.
- Impact on Criminal Proceedings Under Section 85 BNS:
Most mutual divorce settlements are drafted conditionally to resolve criminal complaints, such as dowry harassment under Section 85 BNS (formerly Section 498A IPC). If the mutual consent process fails due to bad-faith withdrawal, all compromise terms become void, and criminal defense or prosecution strategies can be revived.
- Revocation of High Court Quashing Petitions:
Where petitions were filed under Section 528 BNSS (formerly Section 482 CrPC) to quash pending FIRs based on the settlement, the withdrawal of consent at the Family Court allows the aggrieved party to notify the High Court of the default and pursue the statutory proceedings.
TRANSITIONING FROM MUTUAL TO CONTESTED DIVORCE
When mutual consent fails, the aggrieved spouse is not left without remedies. The bad-faith withdrawal of consent after accepting financial or legal advantages provides grounds to initiate a contested divorce petition under Section 13(1)(i-a) of the Hindu Marriage Act on the basis of mental cruelty.
Courts have recognized that entering into an agreement, extracting benefits, and then deliberately subjecting the other spouse to ongoing marital limbo constitutes deliberate mental agony.
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FREQUENTLY ASKED QUESTIONS (FAQ)
Can my spouse withdraw consent after the First Motion is completed?
Yes. Under Indian law, either spouse has the legal right to unilaterally withdraw consent at any time before the final decree is signed at the Second Motion.
Can the Family Court force my spouse to attend the Second Motion?
No. The Family Court cannot force an unwilling partner to appear or grant a divorce decree under Section 13B if consent is absent.
Can I get my settlement money back if my spouse refuses the Second Motion?
Yes. You can file an application for restitution before the Family Court to recover all demand drafts, cash, and stridhan transferred during the First Motion.
Does backing out of mutual divorce amount to contempt of court?
If the spouse accepted financial benefits or had criminal cases quashed based on an undertaking given to the court or mediation cell, backing out without valid justification can lead to contempt of court or perjury proceedings.
Can I file for a regular divorce if mutual divorce fails?
Yes. You can immediately file a contested divorce petition under Section 13(1)(i-a) of the Hindu Marriage Act on the grounds of mental cruelty and desertion.
STRATEGIC LEGAL REPRESENTATION IN DELHI NCR
Protecting financial settlements and drafting contingency clauses requires experienced legal counsel. Advocate Ajay Malik provides representation across the Supreme Court of India, the Delhi High Court, and all District Courts in Delhi NCR (including Dwarka, Saket, Rohini, Patiala House, and Tis Hazari).
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