The article deals with the topic of “mutual consent withdrawal” and the related question. Here are the most authentic and practical answers to the most frequently asked questions about this topic.
The common questions are:
Question1: The family court or any other court has the authority to stop the party to agree from divorce once the party has been agreed and the legal execution has been made.
Question2: What if the party withdraw the case after agreeing with all the terms and conditions?
Question3: If the first motion has completed and the party has taken advantage of settlement.
Here are the answers:
According to section 13 B of Hindu marriage act, any of the parties can extract consent from any stage of the divorce. It is the statutory right of both husband and wife to do so. In other words, till the divorce is announced, any of the parties can withdraw their consent. Family Court cannot interfere or force any party to agree for divorce, and once the consent is taken out by any party, it will become irreversible, due to section:
…….It will encroach upon a statutory right vested in a party under Section 13B(2) of the Act and go against the very spirit of the provision, at the heart of which lies the right of a party to reflect/revisit and retract from its decision of going ahead for grant of divorce by mutual consent, during the cooling-off period”
The family court cannot make consent mandatory at any stage of the divorce petition. But family court or any other court has the right/power to proceed with Civil Contempt so that no dishonest person can take advantage of this privilege by changing the decision at a crucial stage where the other party has to bear the loss. High Court has forewarned that such authority of Civil Contempt cannot exceed to the point of compelling the party for continuing the consent. The relevant conclusion of the decision to the effect is under:
“…….At the same time, a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree”
Answer 3: If the consent is withdrawn after the first motion of settlement the defaulter has to return the advantages taken during the settlement. After the consent is withdrawn the status if the case would go back to the stage where it was before the settlement under section 13(B) (1) of the Hindu Marriage Act… It is known as “status quo ante’ in legal terms.
So, for example, if a person has taken the consent our after first motion and the other party has paid a part of the settlement in the previous motion, the defaulter party has to return the benefits or part of settlement back to the opposite party. The return of benefit is considered as the liability or punishment that is an extract of Civil Contempt. For this, the relevant extract of judgment is as under:
“……Besides directing the defaulting party to disgorge all the benefits/advantages/privileges that have/would have enured in its favour and restoring the parties to the position that was before they had arrived at such a settlement/agreement/undertaking and/or before the consent order/decree was passed in terms of the settlement arrived at/undertakings recorded, the court has the discretion to punish the defaulting party for civil contempt, depending on the facts of a given case”