Can One Party Withdraw from Mutual Divorce in India?

Views: 5

Introduction

Mutual divorce under Section 13B of the Hindu Marriage Act, 1955 is built entirely on consent. Both spouses must agree — freely, genuinely, and without coercion — that the marriage should be dissolved. That agreement is what gives the court jurisdiction to pass a divorce decree under Section 13B. Without mutual consent, there is no mutual divorce.

This raises one of the most practically important and legally nuanced questions in Indian matrimonial law: what happens if one party changes their mind? Can a spouse who has signed the joint divorce petition, appeared before the court at the first motion, and perhaps accepted financial settlement terms, subsequently withdraw their consent and refuse to proceed?

The short answer is: yes — but with significant and increasingly important exceptions. The right to withdraw consent under Section 13B is a real right, recognised by the Supreme Court and built into the statutory framework itself. But it is not absolute. It cannot be exercised in bad faith. It cannot be used as a tactical weapon to extract further concessions after a binding settlement has been reached and its benefits accepted. And it cannot always prevent the court from dissolving the marriage — because the Supreme Court’s powers under Article 142 of the Constitution operate independently of consent.

Understanding this area of law — the right to withdraw, its limits, the judicial evolution of the doctrine, and the landmark 2026 Supreme Court ruling that changed the landscape — is essential for any spouse navigating a mutual divorce proceeding in India.

For complete mutual divorce legal assistance, settlement drafting, and court representation, the family law team at QuickDivorce.in assists couples across all jurisdictions in India.

The Statutory Framework: What Section 13B Requires

Section 13B of the Hindu Marriage Act, 1955 provides the legal basis for divorce by mutual consent. It operates in two stages:

Section 13B(1) — The First Motion: Both parties jointly present a petition to the District Court (or Family Court) stating that they have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved. The court records this petition and the case enters the cooling-off period.

Section 13B(2) — The Second Motion: Not earlier than six months and not later than eighteen months from the date of the first motion, both parties must jointly move the court for a decree of divorce. The court, on being satisfied that the conditions are met and the averments in the petition are true, passes the decree.

The critical word in Section 13B(2) is “both.” Both parties must move the court. The motion for the second hearing is a joint act. If either party does not appear or does not affirm their consent at the second motion, the court cannot grant the divorce under Section 13B.

This structure — requiring continuous mutual consent from filing to decree — is what creates the legal space for withdrawal. The question is how wide that space is, and when it closes.

Sureshta Devi v. Om Prakash (1992): The Foundational Ruling

The Supreme Court’s ruling in Sureshta Devi v. Om Prakash, 1992, is the foundational authority on withdrawal of consent in mutual divorce proceedings. Every subsequent case on this question — every High Court judgment, every Supreme Court ruling — begins with Sureshta Devi.

The facts were straightforward. A couple had jointly filed a petition for mutual divorce. During the six-month cooling-off period, the wife withdrew her consent. The husband argued that the consent given at the time of the first motion could not be unilaterally withdrawn — that having jointly filed the petition, both parties were bound to proceed.

The Supreme Court rejected this argument. The Supreme Court established several crucial principles: the court must hear both parties in a mutual consent divorce; if either party withdraws consent by stating “I have withdrawn my consent” or “I am not a willing party to the divorce,” the court cannot proceed with the divorce; and most importantly, mutual consent must continue until the divorce decree is passed — it cannot be based solely on the initial petition.

The Apex Court opined that normally it is necessary that the consent of both parties subsist till the end of the divorce proceedings under Section 13B, and that withdrawal of consent by one of the parties leads to the dismissal of the petition.

The reasoning was grounded in the text and purpose of Section 13B: the word “consent” implies a continuing state of mind, not a one-time act. A consent given and then withdrawn is no longer consent. The cooling-off period exists precisely to allow parties to reflect on their decision — and reflection may lead to reconsideration. A party that changes their mind during the cooling-off period has exercised exactly the right that the statutory structure contemplates.

What Sureshta Devi Established — and Left Open

Sureshta Devi established the general rule: consent may be withdrawn at any time before the decree. But it did not address the more complex scenario that later cases would confront — what happens when consent is withdrawn after the parties have entered into a detailed settlement agreement, one party has received substantial financial benefits under that agreement, and withdrawal appears designed not to reflect genuine reconsideration but to gain further tactical advantage.

That question — the question of whether the right to withdraw is absolute or subject to equitable limitation — remained open after Sureshta Devi and has been the central issue in the most significant mutual divorce cases of the subsequent three decades.

The Cooling-Off Period as a Tactical Weapon: The Problem the Courts Confronted

Under Section 13B(2) of the Hindu Marriage Act, a waiting period exists between the first and second motion. The original purpose of this cooling-off period was to give couples an opportunity for reconciliation. But in practice, many litigants use this phase as a negotiation weapon.

The pattern courts began to see with increasing frequency was this:

A couple would negotiate a detailed settlement — covering alimony, property division, child custody, return of stridhan, and withdrawal of pending criminal cases. The settlement would be reduced to a formal agreement, filed before the Family Court or a mediator. The first motion would be recorded. One party — typically the party who had received financial benefits under the settlement — would then withdraw consent during the cooling-off period. The withdrawal was not because they had genuinely reconsidered the divorce. It was because they wanted more — more money, revised custody terms, or simply to prolong the litigation as leverage.

The result: the other party was left with a dismissed divorce petition, a depleted financial position (having paid settlement amounts that were now in the other party’s hands), and no remedy — because the divorce had been dismissed and the non-consenting party could not be compelled to return the benefits they had accepted.

This pattern created an urgent need for judicial correction. The Supreme Court responded — incrementally, and then decisively.

Amardeep Singh v. Harbheen Kaur (2017): Waiving the Cooling-Off Period

The Supreme Court’s 2017 ruling in Amardeep Singh v. Harbheen Kaur addressed one dimension of the problem — the use of the cooling-off period as a delay tactic — by holding that the six-month waiting period under Section 13B(2) is directory, not mandatory.

The court held that where the parties have already been living separately for a long period, all efforts at mediation and reconciliation have failed, and the marriage has irretrievably broken down, the Family Court has the discretion to waive the six-month cooling-off period and pass the divorce decree at the earliest practicable date. The court identified factors to be considered: the duration of the marriage, the length of separation, the number of attempts at reconciliation, whether children are involved, and whether there is any reasonable possibility of the marriage being saved.

Amardeep Singh did not directly address the withdrawal of consent question — but it signalled the court’s growing impatience with procedural delay as a litigation tactic in matrimonial proceedings, and it set the stage for the more fundamental development in Shilpa Sailesh.

Shilpa Sailesh v. Varun Sreenivasan (2023): Article 142 and Irretrievable Breakdown

In May 2023, a Constitution Bench of the Supreme Court delivered a landmark ruling in Shilpa Sailesh v. Varun Sreenivasan — a ruling that fundamentally altered the relationship between consent, procedure, and the court’s power to dissolve marriages.

A Constitution Bench of the Supreme Court in May 2023 reaffirmed that it has the power to dissolve a marriage on the ground of irretrievable breakdown — which is, per se, not a ground for divorce under the Hindu Marriage Act — under Article 142(1) of the Indian Constitution, and that it can dissolve a marriage by mutual consent without following the procedural requirements set out in the HMA.

The Constitution Bench held:

📋 The Supreme Court’s power under Article 142 to do “complete justice” is not subject to the procedural requirements of Section 13B — it operates independently of the statute

📋 Where a marriage has irretrievably broken down — evidenced by prolonged separation, failure of all reconciliation attempts, and multiplicity of litigations — the Supreme Court can dissolve the marriage even if one party has withdrawn consent

📋 In exercising this power, the court considers the totality of circumstances, including the duration of separation, the existence and interests of children, the financial settlement between the parties, and the realistic prospects of reconciliation

📋 The cooling-off period can be waived, and the procedural requirements of Section 13B can be bypassed, when the rigidity of procedure would produce injustice rather than serve the statute’s purpose

Shilpa Sailesh did not hold that the right to withdraw consent had been abolished. It held that where consent is withdrawn, the withdrawing party does not thereby acquire an absolute veto over the dissolution of the marriage — because the Supreme Court’s Article 142 power exists independently and can be invoked to dissolve the marriage notwithstanding the withdrawal.

The 2026 Landmark: Consent Cannot Be Withdrawn After Settlement Benefits Are Accepted

The most significant development in this area of law in recent years came in April 2026, when the Supreme Court delivered a ruling that directly addressed the abuse-of-consent-withdrawal problem.

The Facts

The husband and wife were married in February 2000 and had two children. Due to temperamental differences, disputes arose and the parties separated. The husband subsequently filed a divorce petition on grounds of cruelty and adultery. The matter was referred to mediation, where the parties entered into a Settlement Agreement dated May 16, 2024, resolving all disputes. Both parties agreed to dissolve the marriage by mutual consent under Section 13B.

The husband agreed to pay ₹1.5 crore as full and final settlement — ₹75 lakh at the first motion and the balance at the second motion. Jewellery, property rights, shares, and financial assets were to be transferred as agreed. Both parties undertook not to initiate any civil or criminal proceedings against each other.

The first motion for divorce was allowed. ₹75 lakh and other benefits were paid to the wife. The wife transferred significant financial assets to the husband. However, before the second motion, the wife withdrew her consent and later initiated proceedings under the Domestic Violence Act.

The husband initiated contempt proceedings in 2025 after the wife withdrew her consent for mutual divorce.

The Supreme Court’s Ruling

The Court held that while withdrawal of consent in mutual divorce is permissible, a party cannot resile from a duly executed settlement agreement except on limited grounds such as force, fraud, undue influence, or non-fulfilment of obligations. Emphasising that vague and unsubstantiated allegations cannot sustain criminal prosecution under the Domestic Violence Act, the Court termed the proceedings as an abuse of process of law and an afterthought to prolong litigation

. Noting prolonged separation, failure of settlement despite partial compliance, and multiplicity of proceedings, the Court concluded that the matrimonial bond had irretrievably broken down and granted the divorce decree under Article 142.

A spouse who has voluntarily entered into a settlement and derived benefits therefrom cannot subsequently withdraw consent in a manner that defeats the very foundation of that settlement. This decision marks a shift from rigid statutory interpretation to equity-driven adjudication, reinforcing that law cannot be reduced to a tactical instrument of harassment.

What the 2026 Ruling Established

The 2026 ruling did not overrule Sureshta Devi — the general right to withdraw consent before the decree remains. What it established is a clear equitable limitation on that right:

📋 Settlement-benefit bar: A party who has accepted substantial financial benefits under a mediated or negotiated settlement cannot withdraw consent merely to gain further advantage. Accepting the benefits of a settlement binds the party to the obligations under it — including the obligation to proceed with the divorce.

📋 Abuse of process: Withdrawal of consent accompanied by the filing of vague and unsubstantiated criminal complaints — such as Domestic Violence Act proceedings initiated only after withdrawal of consent — constitutes abuse of process of law. Courts will not allow criminal litigation to be used as a post-settlement pressure tactic.

📋 Article 142 as the corrective: Even where the statutory framework under Section 13B cannot produce the divorce (because one party has withdrawn consent), the Supreme Court’s power under Article 142 can and will be invoked where the totality of the circumstances — prolonged separation, failed settlement, multiplicity of proceedings — demonstrates irretrievable breakdown.

📋 Limited grounds for resiling from settlement: A party can resile from a settlement agreement only on narrow grounds — force, fraud, undue influence, or non-fulfilment of the other party’s obligations under the agreement. A change of mind, a desire for more money, or tactical considerations are not valid grounds.

When Withdrawal of Consent Remains Legally Valid

The 2026 ruling did not eliminate the right to withdraw consent. It identified the circumstances in which withdrawal is a legitimate exercise of a legal right and distinguished them from circumstances in which it constitutes abuse of process.

Withdrawal of consent remains legally valid and effective — leading to dismissal of the mutual divorce petition — in the following circumstances:

Genuine Reconsideration During the Cooling-Off Period

Where both parties have filed the first motion but no settlement has been reached and no benefits have been exchanged, and one party genuinely reconsiders their decision during the six-month cooling-off period, withdrawal is fully valid.

The cooling-off period is intended to give time and opportunity to the parties to reflect on their move and seek advice from relatives and friends. A party that uses this period for its intended purpose — genuine reflection — and then withdraws consent is exercising their right exactly as the statute intended.

Withdrawal Before Any Settlement Is Concluded

Where the parties have jointly filed the first motion but have not yet entered into a settlement agreement — alimony, custody, and property matters remain unresolved — either party may withdraw at any stage before the decree. No settlement terms bind them, no benefits have been accepted, and the withdrawal reflects a genuine unwillingness to proceed.

Grounds of Force, Fraud, or Undue Influence

Where a party was induced to sign the joint petition or the settlement agreement through force, fraud, misrepresentation, or undue influence, withdrawal of consent is not merely a legal right — it is the appropriate remedy. A consent obtained through coercion is not genuine consent at all, and the court will treat it accordingly.

Non-Fulfilment of Settlement Obligations

Where the other party has failed to fulfil their obligations under the settlement — failed to pay agreed amounts, failed to transfer agreed property, failed to withdraw agreed criminal cases — the aggrieved party is entitled to treat the settlement as breached and withdraw consent on that basis. The 2026 ruling explicitly identified non-fulfilment of obligations as a valid ground for resiling from a settlement.

The Specific Scenario: Withdrawal After Accepting Settlement Money

The scenario that the 2026 ruling addressed most directly — and which is the most practically significant — is withdrawal of consent by a party who has already accepted substantial financial benefits under the settlement.

The facts of the 2026 case illustrate the pattern clearly: the wife received ₹75 lakh at the first motion, jewellery was returned, financial assets were transferred — and she then withdrew consent before the second motion. This pattern — accept the money, withdraw the consent — had become sufficiently common that it required a definitive judicial response.

The Supreme Court’s response was unambiguous: a spouse who has voluntarily entered into a settlement and derived benefits therefrom cannot subsequently withdraw consent in a manner that defeats the very foundation of that settlement.

The practical implication for parties structuring mutual divorce settlements is significant:

📋 Where one party is concerned about the other party withdrawing consent after receiving settlement payments, the structure of payment should be considered carefully — staggered payments tied to procedural milestones, with the bulk of payment at or after the second motion, reduce the incentive for post-payment withdrawal

📋 Settlement agreements should include explicit provisions addressing the consequences of withdrawal — including obligations to return received amounts and the right to invoke Article 142 in the Supreme Court

📋 Courts and mediators should ensure that settlement agreements are comprehensive, clearly record the parties’ consent freely given, and are filed before the court as part of the consent terms

Article 142: The Court’s Power Beyond Consent

One of the most important practical implications of the Shilpa Sailesh and 2026 rulings is the confirmation that the Supreme Court’s power under Article 142 of the Constitution — the power to pass any order necessary to do complete justice — can be invoked to dissolve a marriage even where consent has been withdrawn.

This means that where mutual divorce proceedings have broken down because of withdrawal of consent, a party is not necessarily without remedy. If the marriage has irretrievably broken down — evidenced by prolonged separation, multiplicity of litigation, failed mediation, and the improbability of reconciliation — the Supreme Court can be petitioned to exercise Article 142 jurisdiction and dissolve the marriage directly.

The factors courts consider in exercising Article 142 jurisdiction include:

📋 Duration of the marriage 📋 Length of the period of separation 📋 The number of attempts at reconciliation and their outcome 📋 The existence of children and their interests 📋 Whether a settlement agreement exists, its terms, and what benefits have been exchanged under it 📋 The nature of pending litigation — whether criminal cases are genuine or tactical 📋 The overall assessment of whether any realistic possibility of reconciliation exists

Article 142 jurisdiction is not a substitute for consent — it is a remedy for irretrievable breakdown. It does not apply to marriages that have recently broken down or where reconciliation remains possible. But for marriages that have been functionally over for years, where parties have been litigating for a decade, and where consent has been withdrawn as a tactical manoeuvre rather than as a genuine reconsideration, Article 142 provides an avenue for the court to end the legal fiction of a subsisting marriage.

The Delhi High Court on Waiving the Separation Requirement

In a significant December 2025 ruling, a Full Bench of the Delhi High Court addressed whether the one-year separation period under Section 13B(1) could be waived — going further than the Supreme Court’s Amardeep Singh ruling, which had addressed only the six-month cooling-off period.

The Delhi High Court held that once the court is satisfied that the parties have made out a case on the relevant touchstone — and where the court decides to entertain the first motion before expiry of the one-year separation period, and the parties have also made out a case for waiver of the six-month cooling-off period — and the court is also convinced that divorce should be granted on mutual consent, there is no justification for the court to withhold the passing of the divorce decree until the one-year separation period expires.

This ruling — combined with the Amardeep Singh waiver of the cooling-off period and the Supreme Court’s Article 142 jurisprudence — signals a clear judicial direction: procedural requirements in mutual divorce proceedings are increasingly being treated as flexible frameworks to be adapted to the needs of justice, not rigid bars that allow one party to hold the other hostage to procedure.

Practical Implications: What Parties in Mutual Divorce Proceedings Should Know

Understanding the current legal position on withdrawal of consent has important practical implications for both parties in a mutual divorce proceeding:

For the Party Considering Withdrawal

📋 If you are within the cooling-off period, no settlement has been concluded, and no financial benefits have been accepted, withdrawal of consent is your legal right — and it ends the mutual divorce petition

📋 If you have signed a comprehensive settlement agreement and accepted significant financial benefits under it, withdrawal of consent may not prevent the divorce — the court may invoke Article 142 to dissolve the marriage despite your withdrawal

📋 Filing criminal cases after withdrawing consent — domestic violence complaints, dowry harassment complaints — will be carefully scrutinised by courts for whether they are genuine or tactical. Courts have described such post-withdrawal filings as “abuse of process” and “afterthoughts to prolong litigation”

📋 The only legitimate grounds for resiling from a settlement are force, fraud, undue influence, or the other party’s non-fulfilment of their settlement obligations — a desire for better terms is not a valid ground

For the Party Facing Withdrawal

📋 Where your spouse has withdrawn consent after accepting settlement benefits, the 2026 Supreme Court ruling provides a strong basis for approaching the Supreme Court under Article 142 to dissolve the marriage notwithstanding the withdrawal

📋 Document carefully what settlement benefits the withdrawing party has received — bank transfer records, jewellery receipts, property transfer documents — as this evidence is central to an Article 142 application

📋 Do not escalate by filing retaliatory criminal complaints — courts treat escalation of criminal litigation after withdrawal of consent as further evidence of the breakdown of the marriage, but retaliatory filings may complicate your own position

📋 Consult a family law advocate immediately — the window for approaching the Supreme Court under Article 142 requires strategic preparation and specialist expertise

For Both Parties in Structuring the Settlement

📋 Structure payment milestones to align with procedural milestones — the bulk of financial settlement at or after the second motion reduces the risk of post-payment withdrawal

📋 Settlement agreements should be comprehensive, freely signed, and filed before the court — a court-filed settlement carries significantly more weight than a privately executed document

📋 Include in the settlement agreement explicit provisions on what happens if either party withdraws consent — the obligation to return received benefits, the right to invoke Article 142, and an acknowledgment that the settlement was freely entered into without coercion

Special Marriage Act: The Parallel Framework

For couples whose marriage was solemnised under the Special Marriage Act, 1954 — which applies to inter-religious marriages and civil marriages regardless of religion — mutual divorce is governed by Section 28 of that Act, which is substantively identical to Section 13B of the Hindu Marriage Act.

The same principles on withdrawal of consent apply to Special Marriage Act mutual divorce proceedings. Sureshta Devi’s holding that consent must subsist until the decree, Shilpa Sailesh’s Article 142 jurisprudence, and the 2026 ruling’s equitable limitation on post-settlement withdrawal all apply with equal force to proceedings under Section 28 of the Special Marriage Act.

Frequently Asked Questions

Can one party withdraw from mutual divorce after the first motion is filed? Yes — in principle, either party may withdraw consent at any time before the decree is passed. However, if a comprehensive settlement has been concluded and one party has accepted substantial financial benefits under it, withdrawal of consent may not prevent the court from dissolving the marriage under Article 142 of the Constitution.

What happens to the divorce petition if one party withdraws consent? Under the general rule established in Sureshta Devi (1992), withdrawal of consent by either party leads to the dismissal of the mutual divorce petition under Section 13B. The parties revert to their status as a married couple. However, the other party may then file a contested divorce petition on fault-based grounds, or — in appropriate cases — approach the Supreme Court under Article 142 for dissolution on the ground of irretrievable breakdown.

Can the Supreme Court grant divorce even if one party refuses? Yes. The Supreme Court’s power under Article 142 of the Constitution allows it to pass orders necessary to do complete justice, including dissolving a marriage on the ground of irretrievable breakdown even where one party has withdrawn consent or refuses to consent. This power was reaffirmed by a Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023) and applied in the 2026 ruling.

What if one party withdraws consent after accepting alimony? The 2026 Supreme Court ruling addresses this directly: a party who has accepted substantial financial benefits under a settlement agreement cannot subsequently withdraw consent to defeat the settlement. The court held this constitutes abuse of process, and invoked Article 142 to dissolve the marriage despite the withdrawal.

Can the six-month cooling-off period be waived? Yes. Following the Supreme Court’s ruling in Amardeep Singh v. Harbheen Kaur (2017), the six-month cooling-off period is directory and not mandatory. Courts may waive it where the parties have been separated for a long period, all reconciliation efforts have failed, and the marriage has irretrievably broken down. An application for waiver must be filed before the court.

What if withdrawal of consent is followed by a criminal complaint? Courts have increasingly viewed criminal complaints — particularly Domestic Violence Act proceedings — filed shortly after withdrawal of consent as tactical instruments rather than genuine complaints. The 2026 Supreme Court ruling specifically noted that vague and unsubstantiated criminal proceedings filed after withdrawal constitute abuse of process. This does not mean all such complaints are disregarded — genuine complaints of domestic violence are always entertained — but tactical filing is scrutinised closely.

Is the right to withdraw consent the same under the Special Marriage Act? Yes. Section 28 of the Special Marriage Act, 1954 — which governs mutual divorce for inter-religious and civil marriages — is substantively identical to Section 13B of the Hindu Marriage Act, and the same principles on consent withdrawal, cooling-off period waiver, and Article 142 jurisdiction apply.

Conclusion

The right to withdraw from mutual divorce in India is real — but it is no longer absolute. The legal landscape has evolved significantly from Sureshta Devi’s foundational holding that consent must be continuous, through Amardeep Singh’s waiver of the cooling-off period, through Shilpa Sailesh’s reaffirmation of Article 142 power, to the 2026 Supreme Court ruling that a party cannot withdraw consent after accepting the benefits of a concluded settlement.

What the law now reflects is a more sophisticated understanding of consent in the context of matrimonial litigation. Consent given freely in the context of genuine reconsideration — using the cooling-off period for its intended purpose — is honoured. Consent withdrawn tactically, after financial benefits have been pocketed and as a lever for further concessions, is not. The legal system has tools — Article 142, equitable limitations on settlement withdrawal, judicial scrutiny of post-withdrawal litigation — to distinguish between the two.

For parties navigating mutual divorce proceedings, the practical message is clear: structure settlements carefully, document every exchange of benefits, approach the process in good faith, and — if consent is withdrawn in bad faith by the other party after settlement benefits have been accepted — know that the Supreme Court has both the power and the willingness to provide a remedy.

Act in good faith. Structure the settlement carefully. Know your rights — and their limits.

Get Expert Mutual Divorce Legal Assistance

🟡 QuickDivorce.in provides complete mutual divorce filing, settlement drafting, court representation, and NRI divorce services across all jurisdictions in India.

🟡Visit LegalTax.in for other Legal and Trademark related services as 👉 Money Recovery Cases 👉 Property Disputes 👉 Business & Licence Registrations

🟡Visit Business24hub for IT services

👉 Mutual Consent Divorce at QuickDivorce.in 👉 Contested Divorce Filing 👉 Child Custody and Maintenance 👉 Matrimonial Property Settlement 👉 NRI Divorce Services 👉 Alimony and Maintenance

🟡 Protect Your Rights 👉 Domestic Violence Legal Support at QuickDivorce.in 👉 Stridhan Recovery

📞 Call Now: +91 8595439395 🕐 Free Consultation: Monday to Saturday, 10 AM to 6 PM

Aryan Yadav

I’m Aryan Yadav, passionate about SEO and Digital Marketing with a strong interest in helping businesses grow online. I enjoy learning new strategies, exploring digital trends, and creating ideas that deliver value. I believe in continuous growth, creativity, and building meaningful results through smart work and dedication.