Sureshta Devi v. Om Prakash (1992)

Quick Summary

The Supreme Court clarified Section 13B of the Hindu Marriage Act. A mutual consent petition does not automatically lead to a divorce decree. Consent must continue at the decree stage. Any spouse may withdraw consent before the decree. If consent is withdrawn, the court cannot grant divorce under Section 13B.

• Court: Supreme Court of India
• Year: 1992
• Citation: AIR 1992 SC 1904

Issues

1. Can a spouse withdraw consent to a mutual consent divorce under Section 13B before the decree?

Rules

• Section 13B(2) HMA: Provides a 6–18 month waiting (cooling-off) period; court cannot grant decree without it.
• The provision does not say that a change of mind must be by both parties; one spouse can change their mind.

Arguments

Judgment (Held)

The Supreme Court allowed withdrawal before decree. It held that consent is a continuous requirement under Section 13B. The “crucial time” is when parties move the court for the decree, not just at filing. Therefore, a spouse may withdraw consent any time before the decree is passed.

Ratio Decidendi

• Mutual consent must subsist at both stages; absence of consent at decree stage defeats Section 13B.
• Either spouse can unilaterally withdraw consent before the decree.
• Cooling-off period ensures real consent and space for reconsideration.

Why It Matters

The ruling protects autonomy and prevents forced divorces. It ensures that a decree by mutual consent happens only when both spouses still agree at the final stage.

Key Takeaways

• Consent must be alive at the decree stage.
• Unilateral withdrawal is valid before decree.
• Filing alone does not guarantee divorce.
• Cooling-off period is mandatory under Section 13B(2).

Mnemonic + 3-Step Hook

Mnemonic: LIVE CONSENT — Live at decree, Individual withdrawal allowed, Verified after cooling-off, Essential for Section 13B.

1. Check if both still consent at second motion.
2. Apply Section 13B(2): observe cooling-off period.
3. Conclude: if one withdraws, decree cannot be passed.

IRAC Outline

Issue

Can a spouse withdraw consent for a mutual consent divorce before the decree?

Rule

Section 13B(2) requires a waiting period and continuing consent at decree stage.

Application

Wife withdrew consent after filing; at decree stage consent was not mutual. Therefore, Section 13B relief could not be granted.

Conclusion

Withdrawal before decree is valid; mutual consent divorce fails if consent is not continuing.

Glossary

Section 13B HMA

Provision for divorce by mutual consent with a waiting period.

Cooling-off Period

6–18 months to reconsider and confirm free consent.

Second Motion

Later stage when parties move for the decree; consent must still exist.

Withdrawal of Consent

Right of any spouse to revoke consent before decree is passed.

FAQs

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