JUDGMENT Jaspal Singh, J.
(1) The question raised is as to whether one of the parties to a joint petition under Section 13B of the Hindu Marriage Act can withdraw its consent and if so, is the Court bound to act on it.?
(2) First a brief resume' of the facts.
ON February 18, 1983 the parties to the petition entered into wedlock. On December 9, 1986 they were blessed with a daughter. In January 1991 they separated. They are still not living together. On February 11, 1992 they moved a joint petition under Sub-section (1) of Section 13B. It was followed by a joint motion under Sub-section (2). However, before the said joint motion could be disposed of, the wife moved an application withdrawing her consent. Faced with this the learned Additional District Judge dismissed the petition. Hence this petition by the husband. What further remains to be noticed is that despite service the wife has not cared to come forward and contest the petition.
(3) Learning on two judgments of this Court in Chander Kanta v. Huns Kumar and Raj Rani v. Roop Kumar, it has been contended by the learned Counsel for the petitioner that since the consent to both the petitions had not been obtained by force, fraud or undue influence, its unilateral withdrawal could not be permitted. It is further argued that the dismissal of the petition is even opposed to the principle underlying Order 23 of the Code of Civil Procedure.
(4) True, both the judgments lend support to the contention but then, unfortunately for the petitioner, both the judgments so fondly referred to and relied upon by him have long since been condemned to oblivion. The judgment in Chandrakanta's cause on which was based the later judgment of this Court, was over-ruled by the Supreme Court in Sureshta Devi v. Om Prakash . And what did the Supreme Court lay down? Here it is: "FROM the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13B is clear on this point. It provides that "on the motion of both the parties ..if the petition is not withdrawn in the meantime, the Court shall .....pass a decree of divorce." What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent. Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am nota willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce..........."
What more can possibly be said? Excepting, of course, that the petition is dismissed.