When One Spouse Withdraws Consent Before the Second Motion

Either spouse can pull out of a joint divorce petition at any point before the decree is signed. If you withdraw consent, mutual divorce under Section 13B of the Hindu Marriage Act, 1955 stops being available to the court, because mutual consent is a jurisdictional fact that must survive from the first motion to the decree. What does not vanish with the consent is the settlement. Money paid, property transferred and cases closed on the strength of a written agreement stay enforceable, and the spouse who walks away can face costs, contempt and an order to return every benefit received.

That second half is where the practical work lies. The rule on consent has been settled since 1991. What matters is what happens to everything done in reliance on it.

What Section 13B actually requires

Section 13B of the Hindu Marriage Act, 1955 (Act No. 25 of 1955) builds mutual consent divorce in two stages, and the second is not a formality. Sub-section (1) lets both parties present a joint petition on three grounds together: a year or more of living separately, an inability to live together, and a mutual agreement that the marriage be dissolved.

Sub-section (2) requires more. On the motion of both the parties, made not earlier than six months and not later than eighteen months after presentation, and "if the petition is not withdrawn in the meantime", the court shall pass a decree after hearing the parties and making such inquiry as it thinks fit. Those two phrases carry the whole subject.

Section 23(1)(bb) adds a filter. Where divorce is sought by mutual consent, the court must satisfy itself that the consent was not obtained by force, fraud or undue influence. It is no rubber stamp on a signed memorandum. Four checkpoints follow, and consent must be alive at each.

Withdraw consent, mutual divorce ends: three decisions that settle it

In Smt. Sureshta Devi v. Om Prakash, decided on 7 February 1991 and reported at (1991) 2 SCC 25, the Supreme Court held that mutual consent is a sine qua non for a decree under Section 13B and must continue till the decree is passed. The waiting period is an interregnum meant to let the parties reflect and take advice. If one party says at the second motion that consent stands withdrawn, no decree can follow.

That was reaffirmed in Hitesh Bhatnagar v. Deepa Bhatnagar, decided on 18 April 2011 and reported at (2011) 5 SCC 234. Free consent of both parties is the most important requirement, and without complete agreement the phrase "divorce by mutual consent" would be meaningless.

The clearest statement came from a Full Bench of the Delhi High Court in Rajat Gupta v. Rupali Gupta, decided on 15 May 2018 on a reference from contempt petitions. Section 13B, the Bench held, recognises an unqualified and unfettered right to withdraw consent unilaterally, notwithstanding any undertaking recorded in any proceeding or settlement, and that right cannot be waived because the statute forbids the waiver.

The eighteen month window is not a point of no return

Clients often believe the divorce becomes automatic once six months pass, or that a spouse silent for eighteen months has lost the right to object. Neither is right. In Hitesh Bhatnagar the withdrawal came after eighteen months and the husband argued the court was bound to decree. It disagreed. The court is bound only where the second motion of both parties falls inside the window, the averments are found true, and the petition has not been withdrawn before the decree. Miss the eighteen months and the court is not bound to decree at all. The period exists to ensure quick disposal, not to set a deadline for withdrawal.

Key takeaway. There is no moment inside Section 13B at which consent becomes irrevocable. Not the settlement, not the first motion, not the expiry of six months or eighteen. Only the decree closes the door.

What happens in court on the day consent is withdrawn

Mechanically it is undramatic. The withdrawing spouse files an application, says so when the second motion is called, or stops appearing. The judge records the position, no decree can follow, and the petition is ordinarily dismissed or closed. No refunds are ordered. The parties are back where they started, except that one has usually parted with money, dropped a complaint or transferred an asset.

The settlement does not collapse with the consent

The Full Bench in Rajat Gupta drew a line worth internalising. No coercive order may compel a spouse to consent, because that defeats the object of Section 13B. But contempt jurisdiction operates in a different field, uninfluenced by the fetters Section 13B imposes. Where an undertaking went to a court or into a consent order or decree, wilful breach can be dealt with in contempt, and the court can direct restoration of the status quo ante, including disgorgement of benefits obtained under the settlement.

The Supreme Court took the same approach in Dhananjay Rathi v. Ruchika Rathi, 2026 INSC 360, decided on 13 April 2026. Withdrawal before the decree is lawful, the Court accepted, but where a settlement records a full and final resolution of disputes a party cannot step back from those terms, and one who resiles from a settlement authenticated by a mediator must be encumbered with heavy costs. The exceptions are narrow: force, fraud, undue influence, or non-fulfilment by the other side.

Four routes are open to the stranded spouse.

Common mistake. Paying the whole settlement amount before the second motion because the other side insists and everybody wants it finished. The paying spouse then has no money, no decree and little leverage, and must start fresh litigation to recover it.

What to do when your spouse withdraws consent

1. Get the withdrawal on the record. Ask the court to record the spouse's statement rather than letting the petition die of non-appearance.
2. Collect everything showing reliance: the settlement, the order recording the first motion, any undertaking accepted by a court, and bank records.
3. Check where the undertaking was given. Contempt lies for breach of an undertaking to a court, not for a purely private promise.
4. See whether the settlement itself is under attack. If force, fraud or your own non-performance is alleged, answer it in writing and quickly.
5. Stop further performance. Deposit the next instalment in court if a date binds you, recording why you are doing so.
6. Choose between recovery and dissolution, or run both. Contempt will not end the marriage; a contested divorce will not return your money.
7. To end the marriage you must plead a statutory ground. A fresh petition under Section 13(1) has to stand on cruelty, desertion or another listed ground.
8. Consider one more mediation first. Terms that failed once sometimes hold at a second attempt with a different payment structure.

Those remedies sit in four different forums, and it helps to keep them separate.

Where the Supreme Court can still end the marriage

A Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan, decided on 1 May 2023, held that the Supreme Court may use Article 142(1) to dissolve a marriage by mutual consent without being bound by the second motion requirement, and may dissolve it on irretrievable breakdown even where the other spouse opposes. The power extends to quashing connected proceedings, including criminal cases.

Two limits matter. A party cannot circumvent the ordinary procedure by a writ petition under Article 32, or Article 226 before a High Court, to seek divorce on irretrievable breakdown. And the discretion belongs to the Supreme Court alone: a family court has no equivalent power, and breakdown remains outside Section 13. In Dhananjay Rathi the husband reached the Court through a criminal appeal, and the marriage was dissolved on conditions.

The same problem under the Special Marriage Act and the Divorce Act

The architecture repeats across the personal law statutes, with one textual difference.

The Divorce Act wording looks helpful to the spouse who wants the decree. It is not, because each provision independently requires a motion of both parties, so a refusal to move the second motion defeats the petition however the withdrawal clause reads. Christian couples should also note that a Division Bench of the Kerala High Court held on 9 December 2022 that the one year separation period in Section 10A violates fundamental rights, and struck it down.

Deadline warning. Eighteen months from presentation of the joint petition is the outer limit for the second motion. Miss it and the court is not bound to grant a decree even if both spouses are still willing.

Drafting a settlement that survives a change of mind

Since the right to withdraw cannot be contracted away, the protection has to be structural.

Stagger the consideration, tying the substantial part of any payment or transfer to the second motion or the decree, and use a court deposit or escrow for larger sums. Second, ask the court to waive the cooling off period where the facts allow. In Amardeep Singh v. Harveen Kaur, decided on 12 September 2017 and reported at (2017) 8 SCC 746, the Supreme Court held the six month period is directory, not mandatory, and identified when waiver fits: the statutory periods are over before the first motion, mediation has failed, alimony, custody and other issues are genuinely settled, and further waiting will only prolong the agony. Our note on the waiver of the cooling off period in mutual consent divorce covers that application.

Third, follow the recording discipline the Full Bench set out in Rajat Gupta: unambiguous terms, an undertaking to abide by them, a penalty for default, statements on oath, and an order accepting those statements and binding the parties. That converts a private disappointment into breach of an undertaking to a court. Fourth, watch the sequencing of any quashing. Once a cruelty case, formerly Section 498A of the Indian Penal Code and now Section 85 of the Bharatiya Nyaya Sanhita, 2023, is quashed under the old Section 482 of the Code of Criminal Procedure, now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, that leverage is spent.

A practitioner's note

The failures are rarely bad faith at the outset. They come from a settlement negotiated in one long afternoon, reduced to two pages, with the whole consideration paid up front because nobody wanted to be the person raising default. Six months later there is no money, no decree and nothing on the court record to act on. The other recurring pattern is a first motion pleading drafted so loosely that both spouses make admissions they would never have made in a contested case. Draft the joint petition assuming the second motion may never happen. Our notes on the mutual consent divorce process and on drafting a divorce settlement agreement cover the mechanics, and the family and divorce law practice page sets out the wider framework.

Related guides and where to get help

If this is a live problem rather than background reading, our family and divorce law practice handles these matters from Bengaluru, including for clients who cannot attend court in person. These guides go deeper on the neighbouring questions:

• Documents for Mutual Consent Divorce in India
• Mutual Consent Divorce Process in India: A Plain Guide
• Waiver of the Cooling-Off Period in Mutual Divorce

Frequently Asked Questions