The first motion is filed, the settlement is signed, part of the money is paid — and then one spouse refuses to appear for the second motion. Can the court dissolve the marriage anyway? Under Section 13B of the Hindu Marriage Act, 1955, the answer the Supreme Court has given is firm: no. In Smt. Sureshta Devi v. Om Prakash, decided on 7 February 1991, the Court held that mutual consent must continue until the decree is passed, and in Hitesh Bhatnagar v. Deepa Bhatnagar, decided on 18 April 2011, it reaffirmed that a party may withdraw consent at any time before the decree — the 18-month period in Section 13B(2) being a spur to quick disposal, not a deadline on withdrawal. This explainer sets out the mechanics, and what a party facing a resiling spouse can actually do.
The two-motion architecture of Section 13B
Section 13B dissolves a marriage on three cumulative findings: the spouses have lived separately for a year or more, they have not been able to live together, and they have mutually agreed to dissolve the marriage. Procedure mirrors substance. The first motion presents the joint petition; after a waiting period of six months (which courts may waive in appropriate cases) and within eighteen months, both parties must move the second motion; the court then makes such inquiry as it thinks fit and passes the decree.
What the Supreme Court settled
Sureshta Devi (1991)
Mutual consent must continue till the decree. A decree passed despite one party\'s withdrawal cannot stand — the Court set aside a divorce granted after the wife resiled. The judgment also defined "living separately" as the absence of the marital relationship, not of a common roof.
Hitesh Bhatnagar (2011)
Consent may be withdrawn at any time before the decree; the 18-month outer limit exists to speed disposal, not to cut off withdrawal. Where the second motion is never jointly made, no decree can follow.
The combined effect is that Section 13B confers no vested right at the first motion. The petition is an offer renewed, not a contract concluded; the court\'s decree, not the settlement deed, dissolves the marriage.
The hard case: withdrawal after taking benefits
The rule protects genuine second thoughts, but it is sometimes used tactically — consent withdrawn after alimony instalments are pocketed or possession of property taken. The marriage cannot be dissolved against the resiling spouse under Section 13B, yet the conduct is far from free of consequence:
- Restitution of benefits. Amounts paid and property transferred under a failed settlement can be pursued for refund, and courts dealing with the parties\' later litigation take note of unjust retention.
- Undertakings to the court. Where settlement terms and undertakings were recorded judicially — as in mediated settlements — breach can invite proceedings for violating the undertaking, a lever absent in purely private deeds.
- The contested route revives. Withdrawal returns the parties to adversarial litigation, where the original grounds — cruelty, desertion — remain available, now supplemented by the record of the aborted settlement.
- Credibility costs. In maintenance, custody and quashing proceedings between the same parties, a demonstrated pattern of resiling shapes the court\'s discretion.
Drafting against the risk
Because consent is revocable by design, protection lies in sequencing, not in clauses purporting to make consent irrevocable — such clauses cannot override the statute. Settlements are therefore structured so that substantial payments and transfers track the second motion and the decree rather than preceding them; obligations are made expressly contingent on the decree being passed; quashing of criminal cases and withdrawal of other litigation are timed with the matrimonial milestones; and every term is recorded before the court so that undertakings attach. A well-drafted settlement assumes the possibility of withdrawal and makes resiling unprofitable, which is the only discipline the law permits.
This article is for general information only and is not legal advice. The handling of a resiling spouse depends on the settlement terms, the stage of proceedings and the forum.
Frequently Asked Questions
Can one spouse alone withdraw consent after the first motion?
Yes. In Sureshta Devi v. Om Prakash (1991) the Supreme Court held that mutual consent should continue till the divorce decree is passed; a petition cannot be allowed where one party has withdrawn consent before the decree. Hitesh Bhatnagar (2011) reaffirmed that withdrawal is permissible at any time before the decree is passed.
Does the 18-month period in Section 13B(2) limit withdrawal?
No. In Hitesh Bhatnagar the Court explained that the 18 months are provided to ensure quick disposal of mutual consent cases, not to fix a time within which consent may be withdrawn. If the second motion is not moved by both parties, the court cannot pass a decree merely because 18 months have elapsed.
What does "living separately" for one year before the petition mean?
Sureshta Devi settled that living separately connotes not living as husband and wife, irrespective of the roof. Spouses sharing a house out of circumstance may still be living separately, while spouses in different cities may not be — the test is the absence of a marital relationship, coupled with the inability to live together.
What remedies exist against a spouse who resiles after taking benefits under a settlement?
The marriage survives, but the resiling spouse is not beyond consequence. Depending on the terms and the conduct, the other side may seek refund or restitution of amounts paid under the settlement, pursue contested divorce on the original or fresh grounds, and resist the resiling party's claims by pointing to the settlement conduct. Undertakings recorded before a court add the possibility of proceedings for breach, and courts weigh such conduct heavily in subsequent litigation between the parties.