Right to Withdraw Consent in Mutual Divorce Under Section 13B of the Hindu Marriage Act

Introduction

The recent judgement of the Bombay High Court has set aside the consideration that withdrawal of consent to a mutual divorce by the wife amounts to abuse of the legal process. This decision has an important bearing on the construction of Section 13B of the Hindu Marriage Act, 1955 which empowers either party to withdraw the consent given for a decree of divorce. The decision reaffirms the position established in previous cases, that consent forms the basis of Divorce under this provision. 

If you are confronted with similar issues in a divorce case, you should seek the help of a lawyer to learn about your legal remedies.

Details of the case 

• Name of the case: Petitioner vs. the state of Maharashtra & anr. (criminal writ petition no. 2638 of 2022) 

• Bench: A S Gadkari and Neela Gokhale

• Court: Bombay High Court

• Date of judgement: 19/11/2024
  
  

Background

Section 13B of the Hindu Marriage Act, 1955 for mutual divorce, i.e., divorce by mutual consent was introduced to ease the process of getting a marriage dissolved wherever parties to the marriage agreed. But it also includes a protection measure for the same allowing for revoking consent before the last motion is passed thus ensuring that no party is coerced into a divorce against their will. 

If you want specific advice about mutual divorce or withdrawal of consent then it will be advisory to get help from a family lawyer.

The Case

The case was a civil matter between the couple who got married under Arya Samaj's marriage rites in 2015. First, the bride was physically and emotionally abused, harassed for dowry and then abandoned by her husband till the marriage failed. The wife filed an FIR in 2018 for cruelty, separate demand for dowry and other offences by the husband, and his family members. Nevertheless, the couple was able to amicably agree in 2022 to carry out an annulment to their marriage.

Getting legal assistance is recommended especially when there are criminal charges and contested asset division in a divorce process.

Brief Facts

The agreed settlement was to pay maintenance and to transfer a jointly owned flat to the wife. Nevertheless, conflicts emerged when the husband was unable to perform these conditions. In 2024 the wife refused her consent to the mutual divorce under the agreement arguing non-compliance with the provisions of the agreement, and she declined to present the second motion under Section 13B(2). This withdrawal forced the husband to apply for a stay of prosecution of the criminal charges preferred against him on the basis of abuse of the process by the wife.

If for any reason you are unclear about withdrawal of consent or the options that come along with it, legal advice is necessary to prevent any undesired consequences.

Laws Discussed

Section 13B of the Hindu marriage Act, 1955

The case mainly deals with Section 13B of Hindu Marriage Act which deals with mutual consent divorce. The Section allows either of the spouses the absolute right to withdraw the consent before the actual decree is affected. The Bombay High Court highlighted the importance of this statutory right stating that it cannot be hampered by any contract reached by the parties stating that a party can withdraw consent despite reaching an agreement throughout the course of the dissolution of marriage. 

The best thing to do that will help you know more about your rights or what you are allowed to do under such a provision of law is seeking the assistance of a lawyer.

Section 13B (1) and Section 13 B (2) of the Hindu Marriage Act

This case also discussed Section 13B(1) and 13B(2), which is the procedure to make a petition for divorce petition by mutual consent and the period name as the cooling off period. The decision of the wife to withdraw consent was treated as valid under these Sections, adding that under both sections, any party can change his or her mind to divorce by mutual consent before the actual passing of the decree. 

If you have some level of confusion over procedural issues like the cooling-off period, there is a need to seek legal counsel.

These laws formed a premise from which the court derived most arguments it applied in relation to the legal right to withdraw consent and the limits of matrimonial settlements when involved in current criminal matters. In a divorce case that has a criminal touch, it is vital to hire a lawyer who will protect the client’s legal rights.

Judgment

The Bombay High Court quashed the petition filed by the husband by holding that the wife had a legal right under the statute to withdraw her consent. The court pointed out that under Section 13B of the Hindu Marriage Act, the consent of the parties to persist with the marriage after initiation of proceedings is not merely implied, but is in fact absolute right of either spouse to withdraw consent even before the finality of decree. 

The court pointed out that this statutory right cannot be limited in any way by prior stipulations or agreements. It is therefore important that one insists on knowing your rights during the process of the dissolving of marriage. 

Visiting a legal expert will assist in understanding these legal issues.

Reasoning of the Court

The court’s justification used for this decision was that to allow the husband’s petition would be to erode the legal basis of Section 13B. It pointed out that withdrawal of consent cannot be said to be an abuse of the process of law notwithstanding a prior settlement. The judgement also pointed out that the wife had not benefited from the settlement terms under the pretext of justice thereby focusing that the husband had not been able to provide for his responsibilities. 

More so, if there are issues to do with settlement, the law will be of importance in such a case, and a lawyer will know how to enforce your rights.

Future Implications

This decision eliminates links between criminal cases and divorce and strengthens respect for legislative rights. It is probably going to shape future cases by insisting on the enforcement of settlement agreements and the requirement that mutual divorce is contractual. The ruling also comes as a check on parties seeking to negotiate settlements so that they maintain agreed-upon contracts to discourage protraction.

If anyone has similar problems, consultation with a lawyer who will be representing your case should be sought in order to make sure that all legal proceedings will be properly conducted.

Critical Analysis

The judgement of the court preserves the choice and legal protection of individuals concerning divorce matters. It makes certain that mutual divorce is really voluntary while at the same time, eliminating the problem of failure to implement agreed divorce terms. However, the judgement focuses on the factual issue of how the law can strike the best balance between enforcing contractual settlements and recognising the parties’ contractual right of withdrawal. 

Despite this, the case could have made provision for enhanced measures on how to handle non-compliance mechanisms to avoid jeopardising any ongoing criminal or civil cases in settlement agreements. 

Seek the assistance of legal professionals and they will help you with advice on ways to handle settlement issues appropriately.

Conclusion

In the present judgement, the Bombay High Court has provided a boost to statutory rights under Section 13B of the Hindu Marriage Act. Thus, by paying adequate respect to the possibility of the wife to withdraw her consent as the absolutely exclusive ground for mutual divorce, the court has advanced the principles of individual liberty and legal justice in matrimonial litigation. This judgement offers some legal certainty regarding the relationship between divorce settlements and criminal cases and guarantees that both proceedings are not affected by one another. 

These matters are complex and if you have doubts over outcomes if you withdraw consent or require assistance in pressing upon the divorce settlements, it is essential you consult a lawyer.

FAQs

What is the Importance of Section 13 B of the Hindu Marriage Act?

The Section 13B gives an opportunity for mutual divorce through two motions. Only the parties involved can withdraw consent before the final decree to ensure people’s willingness to participate in it. For any more clarification of how this section impacts your case then it is recommended to talk to a family lawyer.

Can criminal charges be stayed because of a divorce settlement?

No, criminal proceedings are not a part of mutual divorce settlements, and a separate judicial evaluation is necessary. When a person is charged and going through a divorce, it will be helpful if the lawyer deals with both situations.

Is the acting contrary to an agreement void for lack of proper consent?

Recall that withdrawal of consent is a statutory right and as such cannot be negated by terms of prior agreement or settlement. So that you understand how this impacts your situation, it’s important to speak to an experienced divorce attorney.

What sanctions for non-compliance of settlement are allowed under the Rules?

The aggrieved party can take legal action and sue the other party in civil courts for enforcing the agreement or seek a remedy through the award of damages.