Mutual Consent Divorce — When One Party Withdraws at Second Motion

The joint petition is filed. Six months pass. The second motion date arrives. One party does not appear — or appears and withdraws consent. The court cannot pass a decree without the mutual agreement of both parties. What was, until that morning, a straightforward matter reverts to contested terrain.

This happens more often than either party expects when filing. Alimony was agreed on paper but the figure now looks wrong to one side. A new relationship has complicated the picture. Pressure was applied at the first motion that the withdrawing party now acknowledges. Each situation is different; the legal position is the same.

The Section 13B HMA framework

Section 13B of the Hindu Marriage Act, 1955 requires both spouses to jointly petition for divorce on mutual consent, to affirm that they have been living separately for at least one year, and to move the second motion between six months and eighteen months after the first motion. The decree is granted only if both parties maintain their consent at the second motion.

Amardeep Singh v. Harveen Kaur (2017) confirmed that the Supreme Court has power to waive the six-month cooling-off period in appropriate cases — but the same judgment also affirmed the foundational principle: consent must be freely given by both parties at each stage, including the second motion. The cooling-off exists precisely to test whether the consent survives reflection.

Consent can be withdrawn until the decree is passed

The Supreme Court has held consistently that in a Section 13B proceeding, either party can withdraw consent at any time before the decree is actually pronounced. A party who attends the second motion and asks to withdraw consent is exercising a right that the law expressly preserves. The court cannot proceed over that withdrawal to grant a decree.

What the court can do is examine whether the withdrawal is genuine or whether it is a tactical move to extract better terms. Where the court finds that a settlement agreement was reached, signed, and acted upon — and that the withdrawal is being used to reopen concluded terms — it has scope to take this into account in subsequent proceedings.

What triggers a withdrawal

Withdrawals at the second motion typically fall into a few patterns. Alimony renegotiation is the most common: one party agreed to a figure under time pressure at the first motion and believes the other side will not convert to a contested matter over the difference. New disclosures — a discovered asset, a new relationship, a changed custody situation — sometimes justify reopening the negotiation. Genuine emotional reversal is also real: people change their minds about divorce over six months.

Options for the remaining spouse

The first option is to convert to a contested petition under Section 13 HMA on one or more statutory grounds — cruelty, desertion, or whichever applies. The existing Section 13B petition is withdrawn and a fresh Section 13 petition filed. The proceedings restart. The timeline extends to years.

The second option is to file for restitution of conjugal rights under Section 9 HMA — where the withdrawing party has also been the one who left the matrimonial home. This is less commonly useful but creates a parallel proceeding.

The third option: negotiate. Where the withdrawal is driven by alimony dissatisfaction, a revised figure agreed before the next date may restore consent. The settlement agreement on record — even without a decree — is a material document in any subsequent negotiation or litigation. It establishes what was acceptable to both parties at the time.

The settlement agreement without a decree

A signed settlement agreement that formed the basis of the first motion but was never incorporated into a decree is not automatically enforceable as a decree. It can, however, be produced in contested proceedings to show agreed terms. Courts have used such agreements in fixing interim maintenance, custody arrangements pending trial, and in assessing whether a later claim of cruelty is credible given what was agreed and signed.

How Bangalore Family Court typically handles this

At Mayo Hall, a withdrawal at the second motion usually results in the court adjourning to give parties an opportunity to resolve the issue that prompted the withdrawal. Judges occasionally ask counsel to explore whether the objection is to the settlement terms specifically. Where the withdrawal is firm, the court converts or dismisses the mutual consent petition and the parties proceed to contested proceedings or lapse. The lapsed petition can be refiled as a fresh Section 13B petition if both parties later restore agreement.