There is a conflict of opinion on the question whether one of the parties (Husband or Wife) can unilaterally revoke the consent. When a petition is filed jointly by the husband and wife both agreeing to divorce, the petition is to be considered by the court only after the expiry of six months.
Before the court passes the divorce decree, can one of the parties revoke his (or her) consent and thereby cause the petition to be dismissed? The answer is yes according to the following decisions:
Harcharan Kaur v. Nachhattar Singh, AIR 1988 P&H 27.
Santosh Kumari v. Virendra Kumar, AIR 1986 Raj. 128.
The Bombay and Madhya Pradesh, High Courts have taken a contrary view.
Notin Ramnaik v. Padmini, 1985 (1) Hindu LR 668 (Bom.).
Meena v. Anirudh Datta, 1985 (1) Hindu LR 280 (MP).
It is respectfully submitted that decree for divorce can be granted only if the consent of both parties continues upto the passing of decree. It may be noted that a petition for divorce on any of the fault grounds under s. 13 can be converted into a petition for divorce by mutual consent. See Indrawal v. Radhey Raman, AIR 1981 All. 151 and Santosh v. Virendra Kumar, AIR 1986 Raj. 128.
During the pendency of a divorce petition if the parties voluntarily reach a settlement as to the commitment and mutually agree for divorce the original divorce petition may be converted into the petition for divorce by mutual consent. Sandhya v. Manoj, (1998) 8 SCC 369.
The Supreme Court in Ashok Hurra v. Rupa Bipin Zaveri, AIR 1997 SC 1266: 1997 (3) Supreme 35: (1997) 4 SCC 226, held that if the petition for divorce by mutual consent is not withdrawn by either of the parties within the time limit of 18 months as prescribed the court will not entertain subsequent petition for withdrawal of consent and may grant divorce. In the case the court presumably brought break down theory in order to put a decent end to an irreversible ship wreck.
The courts did not insist upon six months waiting period under s. 13-B if the circumstance so demand and there is no use in waiting except satisfying the statutory period. In re Gandhi Venkata Chitti Abba, AIR 1999 AP 91.
When a decree is passed on mutual consent there cannot be a review petition alleging by the wife that her consent was obtained by husband by fraud, coercion and threat particularly when the wife is an educated lady and had all opportunities to complaint, to many people about fraud played on her by husband. Anita v. R. Rambilas, AIR 2003 AP 32.
(2) Before the amendment, living in adultery was a ground for divorce while, even an isolated act of adultery sufficed for judicial separation. Now the law has been made more stringent and even an isolated act of adultery is sufficient to claim even the relief of divorce: Hindu Marriage Act s. 3 (1) (i).
In Chiruthakutty v. Subramanian, AIR 1987 Ker. 5, the husband sought divorce on the ground of adultery by his wife. He had submitted to a vasectomy operation on 8-1-1976. Still a child was born on 30-8-1978. He has to establish his infertility in or about November, 1977 when the child was conceived. Taking into account the fact that vasectomy operations are not cent per cent successful, the court held that adultery was not proved and dismissed the petition.
(3) Before the Amendment, cruelty of the respondent could give rise only to a cause of action for judicial separation. Further, the cruelty had to be such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or dangerous to the petitioner to live with the respondent, this subjective condition has now been omitted and cruelty is made ground even for divorce, (s. 13. (1) (ia)).
(4) Desertion for two years was formerly a ground for judicial separation. Now it is made a ground even for divorce, (s. 13 (1) (ib))
(5) Previously, incurable unsoundness of mind was a ground for divorce if it existed for at least three years prior to the petition. Now the condition as to three years is removed. Further, even mental disorder falling short of unsoundness of mind, e.g., schizophrenia or some psychopathic disorder making the respondent abnormally aggressive or seriously irresponsible, is sufficient to claim a divorce, (s. 13 (iii)).
(6) Formerly, virulent and incurable leprosy was a ground for judicial separation if it had been persisting for at least one year or a ground for divorce if it had been persisting for at least three years prior to the date of the petition. Now the time limits have been omitted. Incurable and virulent leprosy is a ground for divorce (or for judicial separation) and it is not necessary for the petitioner to show that it had been affecting the respondent for three years (or 1 year as), the case may be, preceding the petition for matrimonial relief s. 13 (1) (iv).
(7) Previously, venereal disease in a communicable form was a ground for divorce (or judicial separation) but the petitioner had to show that such disease had been afflicting the respondent for at least three years preceding the filing of the petition. Now the time limit has been omitted.
Further, formerly if the petitioner had caused the infection to the respondent, the relief which he could claim was only divorce while the other party could have sought either divorce or the lesser relief of judicial separation. This refinement has now been dropped and the question as to whether or not the petitioner had communicated the disease to the respondent is now immaterial, (s. 13 (1) (v)).
(8) Formerly, when a decree for restitution of conjugal rights or a decree for judicial separation was passed either party could seek a divorce if there was no resumption of cohabitation for two years after the decree. Now the period of waiting has been reduced to one year, (s. 13 (1-A))
(9) The wife had formerly two special grounds for obtaining divorce. Those two grounds still exists but two more grounds have been added. The two additional grounds are:
(a) The award of separate maintenance to the wife by a court either under the Hindu Adoptions and Maintenance Act or under the provisions of the Criminal Procedure Code and the non-resumption of cohabitation though more than one year has passed since the passing of such decree or order, (s. 13 (2) (iii))
(b) Repudiation of a child marriage (solemnized before attainment of 15 years, after attaining 15 years and before attaining 18 years, (s. 13 (2) (iv))
(10) Formerly no petition for divorce could lie till at least three years had elapsed since the date of the marriage. The period of waiting has now been reduced to one year only, (s.14)
(11) Formerly a divorced person could not marry again until one year had elapsed from the date of the passing of the decree for divorce in the court of first instance. This waiting period has now been dropped as it was causing unnecessary hardship without serving any useful purpose. A divorced person can now marry again as soon as the decree becomes final, i.e., after the time allowed for appeal has expired, or the appeal has been dismissed.
Such are the changes effected by the Amending legislation of 1976 in the law relating to divorce.