Madhya Pradesh High Court
Umesh Soni vs Smt. Kiran Soni on 10 October, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:52074
1 FA-854-2024
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 10th OF OCTOBER, 2025
FIRST APPEAL No. 854 of 2024
UMESH SONI
Versus
SMT. KIRAN SONI
Appearance:
Shri Shiv Kumar Dubey - Advocate for the appellant.
Shri Durgesh Pandey - Advocate for the respondent.
JUDGEMENT
Per: Justice Vishal Dhagat
Appellant has filed this first appeal under Section 28 of the Hindu
Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984
against judgment and decree dated 15.04.2024 passed by District Court
Mauganj, District-Rewa (MP) in RCSHM No.77/2023. By impugned
judgment and decree, petition filed by appellant and respondent under
Section 13-B of the Hindu Marriage Act, 1955 was dismissed.
2. Learned counsel appearing for the appellant submitted that
marriage of appellant and respondent was solemnized on 15.05.2011 at
village-Deora, District-Rewa as per Hindu rites and rituals. One son and
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one daughter were born out of wedlock. After some time of marriage,
marital dispute between the parties occurred and they were not able to
reconcile with each other. Appellant filed an application for divorce
under Section 13(1) of the Act of 1955. After litigating for three years,
parties decided to give divorce to each other by mutual consent. Petition
under Section 13(1) was withdrawn on 21.07.2023. Application for
execution of order passed under Section 125 of the Cr.P.C. was also
withdrawn by respondent vide order dated 21.07.2023. Appellant and
respondent filed a joint petition under Section 13-B of the Hindu
Marriage Act, 1955. An amount of Rs.44,000/- was paid by appellant to
respondent. Preliminary evidence was recorded and thereafter, case was
fixed for second motion on 27.01.2024. Respondent in second motion
took a U-turn and withdrew her consent. She made statement that she
want to live along with appellant. In these circumstances, petition filed
under Section 13-B was dismissed.
3. Learned counsel appearing for the appellant submitted that
relationship between the parties had deteriorated beyond repair.
Respondent had done second marriage. Amount of Rs.39,000/- was paid
on 21.07.2023 towards maintenance and Rs.44,000/- was paid as
permanent alimony on 26.07.2023. Appellant returned all Stridhan and
other articles received by him in marriage. Respondent played fraud
taking U-turn and withdrawing her consent for divorce by mutual
consent. Learned counsel for appellant relied upon the judgment passed
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by Delhi High Court in case of Rajat Gupta Vs. Rupali Gupta reported
in 2018 SCC Online Delhi 9005. In said case, it was held that party
cannot unilaterally withdraw its consent and same would amount to
breach of undertaking made before the Court of law resulting in civil
contempt. Consent has to be withdrawn on just and reasonable ground
and other party must not suffer prejudice. Consent can be unilaterally
withdrawn only in exceptional cases and on reasonable ground. In view
of aforesaid judgment, counsel for the appellant made a prayer for
setting aside of impugned judgment and decree and to dissolve
marriage. He further relied upon the judgement and decree passed by
Bombay High Court in case of Mr. Prakash Alumal Kalandari Vs.
Jahnavi Prakash Kalandari reported in AIR 2011 Bombay 119. In said
case, a distinction has been drawn in case where a petition is filed under
Section 13-B simpliciter and in cases where initially petition was filed
under Section 9 or 13 and during pendency of said case, party decided to
file petition for divorce by mutual consent. In cases of second category,
party cannot be permitted to unilaterally withdraw the consent if other
party has acted upon the consent terms either wholly or in part to his
detriment. In second category of cases, Court has to be satisfied that
there is sufficient, good and just cause for allowing party to withdraw
consent, lest, it results in permitting the party to approbate and
reprobate. Court is also required to see that other party does not suffer
prejudice which is irreversible, due withdrawal of the consent. If two
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requirements is not satisfied, Court should loath to entertain prayer of
the party to unilaterally withdrawn his/her consent.
4. Learned counsel appearing for the respondent submitted that as
per Section 13-B of Hindu Marriage Act, 1955, petition for divorce by
mutual consent is to be presented by both the parties together. Such
party may be living separately for period of more than one year and they
have mutually agreed for dissolution of marriage. After presentation of
petition in second motion, if petition is not withdrawn, the Court shall
on being satisfied pass decree of divorce declaring marriage to be
dissolved w.e.f. date of decree. Cooling period of six month is provided
so that party has time to revisit their decision. During said period, party
may makeup their mind for divorce by mutual consent. One of the
parties may withdraw the consent before passing of decree as has been
held by Apex Court in case of Hitesh Bhatnagar Vs. Deepa Bhatnagar
reported in (2011) 5 SCC 234 . In view of same, first appeal may be
dismissed.
5. Heard the counsel for the parties.
6. Apex Court in case of Hitesh Bhatnagar (supra) held that
consent for divorce can be withdrawn by a party before decree of
divorce is passed. However, Bombay High Court in case of Prakash
Alumal Kalandari (supra) bifurcated petition under Section 13-B into
two categories. First category is of a case where petition under Section
13-B of the Act of 1955 is filed simpliciter for dissolution of marriage
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and second category where initially petition was filed under Section 9 or
13 and later on as per mutual agreement between the parties, petition is
filed under Section 13-B of Hindu Marriage Act. Distinction has rightly
been drawn because a party has acted on mutual agreement and has
decided not to prosecute petition under Section 9 or under Section 13
and instead filed a petition under Section 13-B of the Hindu Marriage
Act, 1955. Party cannot be permitted to approbate and reprobate or to
blow hot and cold. If one party has acted on mutually agreed terms for
obtaining decree of divorce by mutual consent then other party may not
be permitted to withdraw consent. Such unilaterally withdrawal will
amount to putting other party to prejudice. For withdrawal of consent
sufficient cause is to be shown to the satisfaction of Court.
7. In this case, appellant had filed a petition for divorce under
Section 13 of the Hindu Marriage Act, 1955. Both parties were litigating
the petition for three years and thereafter, they agreed to file a petition
for divorce by mutual consent under Section 13-B. Appellant has
withdrawn his petition for divorce. Respondent has also withdrawn
proceeding under Section 125 of the Cr.P.C. Appellant had paid
permanent alimony which was accepted by respondent. In second
motion, respondent has withdrawn her consent. Withdrawal of such
consent is against the principle of equity and will prejudice other party.
No sufficient and good cause was shown. Appellant had acted upon
mutually agreed terms for divorce. Facts of this case are distinguishable
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from facts of case of Hitesh (supra). In case of Hitesh (supra), petition
for divorce under Section 13-B was filed simpliciter. In this case,
initially petition for divorce was filed. During pendency of case, parties
agreed to file divorce case under Section 13-B. Appellant had
withdrawn his divorce petition and had also paid permanent alimony to
respondent. Appellant had changed his position on consent of
respondent. Respondent has also accepted permanent alimony paid to
her. In these circumstances, she cannot be permitted to unliterally
withdraw the consent without showing sufficient cause or reason. In
these circumstances, trial Court has committed an error in permitting
respondent to withdraw consent and further committed an error in not
passing decree of divorce.
8. In view of same, judgment and decree dated 15.04.2024 passed
in Case No.77/2023 is set aside. Petition filed under Section 13-B of the
Hindu Marriage Act, 1955 is allowed and marriage dated 15.05.2011
between appellant and respondent stand dissolved.
9. Decree be drawn accordingly.
(VISHAL DHAGAT) (ANURADHA SHUKLA)
JUDGE JUDGE
$A
