The Kerala High Court has ruled that continued mutual consent of both parties is necessary for courts to grant a divorce under Section 13B(2) of the Hindu Marriage Act 1955.
The division bench comprising Justice Anil K Narendran and Justice P G Ajithkumar observed if one party withdraws consent before the court gives its final verdict, then the divorce cannot be granted.
The ruling came on an appeal filed by a man against the cancelling of the divorce after his partner withdrew her consent for a mutual separation midway.
"...It is only on the continued mutual consent of the parties that a decree for divorce can be passed by the court. If the divorce petition is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent," the bench ruled.
The man filed an appeal against the order of the Family Court in Thiruvananthapuram. The couple had approached the court seeking divorce by mutual consent. They drew a compromise agreement listing various terms including the custody of the minor child and money deposit in the name of the child. However, when the petition came up for consideration of the court, the woman withdrew her consent. Following this, the court dismissed the petition.
The husband then filed an appeal before the High Court against the family court order.
(With inputs from LiveLaw)
