Wife’s Refusal To File Mutual-Consent Divorce Can’t Revive Husband’s Unconditionally Withdrawn Cruelty-Based Divorce Petition: Delhi HC

The husband’s divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, was withdrawn after the parties reached a mediation settlement dated 12 December 2017. The settlement addressed their separate lives and properties but did not expressly require them to seek divorce by mutual consent under Section 13B.

The husband alleged that he performed his obligations under the settlement, including payment of ₹18 lakh and transfer or relinquishment of property, but that the wife later refused to file a joint petition for divorce.

He applied to restore his withdrawn divorce petition and obtain a formal divorce decree. The Family Court rejected the application, and he appealed.

Whether a divorce petition unconditionally withdrawn following a settlement could be restored when the other party declined to pursue divorce by mutual consent.

Whether a settlement agreement could compel a spouse to file or pursue a petition for divorce under Section 13B of the Hindu Marriage Act.

Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908, provides that a plaintiff who abandons a suit or withdraws it without permission to institute a fresh suit is precluded from bringing a fresh suit on the same subject matter.

Section 13B of the Hindu Marriage Act requires a joint petition and continuing mutual consent through the statutory process; a party cannot be compelled to consent to divorce by mutual consent.

Relying on Rajat Gupta v. Rupali Gupta, 2018 SCC OnLine Del 9005, the Court reiterated that an undertaking or settlement cannot override a party’s right to withdraw consent under Section 13B.

The settlement contained no express agreement to file for divorce by mutual consent; its provision allowing the parties to amend their papers to reflect separate lives did not amount to such an agreement.

The husband’s divorce petition had been withdrawn unconditionally, and no decree disposing of it in terms of the settlement had been passed under Order XXIII Rule 3 CPC.

Accordingly, the withdrawal attracted Order XXIII Rule 1(4), and the settlement could not supply a basis to restore the petition or compel the wife to participate in a Section 13B proceeding.

It found no infirmity in the Family Court’s order and dismissed the appeal and any pending application, while leaving open the husband’s recourse to other remedies available in law.