Introduction:

In the case of Doyel Dey v. The Judge, Family Court, Balasore & Anr. [W.P.(C) No. 39609 of 2021], the Orissa High Court ruled that either spouse can withdraw consent for a divorce under Section 13-B of the Hindu Marriage Act, 1955, at any time before the decree is passed, even after arguments have been concluded. Justice Gourishankar Satapathy emphasized the essence of mutual consent in divorce proceedings, holding that a decree cannot be granted if one party withdraws consent prior to the decree’s issuance. This decision follows the precedent set by the Supreme Court in Smt. Sureshta Devi v. Om Prakash.

Arguments of Both Sides:

The petitioner-wife argued through her counsel, Ms. Sailabala Jena, that the trial court erred in dissolving the marriage on mutual consent after she had unilaterally withdrawn her consent before the decree was passed. Relying on Sureshta Devi v. Om Prakash, she contended that mutual consent must persist until the decree is granted. The petitioner emphasized that the trial court’s action was in direct violation of established legal principles, as the withdrawal of consent negated the foundation of mutuality required under Section 13-B of the Hindu Marriage Act.

On the other hand, the respondent-husband, represented by Mr. Sanjay Pattanaik, countered that the petitioner’s withdrawal of consent occurred after conciliation had been completed and arguments had concluded. He contended that such withdrawal was not permissible at this advanced stage of the proceedings, arguing that the petitioner’s actions disrupted the finality of the process and caused undue hardship.

Court’s Judgment:

Justice Gourishankar Satapathy examined the factual and legal aspects of the case, focusing on the critical question of whether a decree of divorce by mutual consent can be passed if one spouse withdraws consent after arguments but before the decree is issued. The Court revisited the Supreme Court’s judgment in Sureshta Devi v. Om Prakash, which underscored the necessity of continued mutual consent until the passing of the decree.

The High Court observed that in the present case, the petitioner-wife had filed her withdrawal of consent on November 18, 2021, while the trial court passed its judgment on November 22, 2021. Despite the withdrawal, the trial court dissolved the marriage, which, according to the High Court, violated the statutory requirement of mutuality and was legally unsustainable. The Court held that the petitioner’s withdrawal of consent, even four days before the judgment, invalidated the basis for granting the decree of divorce.

Justice Satapathy emphasized that granting a decree solely on the initial petition, without mutual consent at the final stage, undermines the legislative intent of Section 13-B. Mutual consent is not only the foundation of such proceedings but a “sine qua non” for the court’s authority to grant a decree of divorce. The High Court ruled that the trial court’s judgment was erroneous and unsustainable in law, as it failed to respect the unilateral withdrawal of consent by the petitioner.

The High Court set aside the impugned judgment of the Family Court and remitted the matter back to the concerned court for fresh disposal in accordance with the law. The Court reiterated that the essence of mutual consent must prevail throughout the divorce proceedings, and any unilateral withdrawal of consent, if communicated before the decree is passed, invalidates the proceedings.