Challenging, Cancelling or setting aside a Divorce Decree by mutual consent is a legal process by which the final divorce Decree is invalidated, usually due to issues such as fraud, coercion or procedural irregularities.
Before knowing whether a mutual divorce decree can be legally
challenged or set aside, we must know the legal definition of divorce by mutual
consent.
Mutual Divorce or Mutual Consent Divorce is a kind of Divorce, where both the parties i.e. husband and wife mutually agree to end their marriage, and also decide the terms and conditions of divorce amicably, and further they file a Mutual Divorce petition jointly before the family court to get the Decree of Divorce.
According to Section 13B(1) of the Hindu Marriage Act, a joint petition for dissolution of marriage by a decree of divorce can be presented in the District Court by both the parties to the marriage.
Under Section 319 of the
Mohomedan Law, there are two forms of Mutual Consent Divorce i.e. Khula and
Mubaraat. Where Khula is a form of Divorce proposes by the Wife to husband and
Mubarat is a form of Divorce proposed by both the parties and they decided
mutually to put an end to their tie.
Can Mutual Divorce Decree be challenged in Court?
Divorce with mutual
consent of both the parties is only an agreement and has no legal value unless
the Court passes the Decree, but when both the parties appear before the Court
and give their personal statement before the court and they agree to end the marital
bond, then the decree of divorce passed by the Court with mutual consent
becomes legal and binding on both the parties and the marriage is officially
dissolved, and the said passed Decree of divorce cannot be challenged in any Court.
However, if in any case,
it is found that the consent of one of the parties was obtained by fraud,
coercion or undue influence, then the affected party can approach the Court to
reconsider the divorce decision.
Cancellation of Mutual
Consent Divorce Decree:
Cancellation of divorce
by mutual consent refers to the legal process where one or both parties wish to
withdraw or invalidate a divorce by mutual consent before it is finalized by
the Court or is fully implemented.
Since, in a divorce by
mutual consent, both the parties agree to end the marriage amicably on the
basis of mutually agreed terms and conditions after settling the dispute
regarding property division, alimony and child custody, hence the legal
Therefore, they can withdraw the joint petition they filed before passing the
final Decree of divorce by the Court.
Can One Party withdraw the Divorce by Mutual Consent?
Divorce by Mutual Consent requires the voluntary consent of both the spouses, but when one spouse changes his or her mind after filing a joint petition before the Court and withdraws his or her consent, the Court cannot proceed for divorce under the provisions of Mutual Consent.
The legal process where the parties can withdraw or invalidate a divorce by mutual consent:
Before passing the Final Decree of Divorce:
1. Grounds for mutual consent cancellation:- Change of heart: If one of the spouses no longer wishes to proceed with the divorce, he or she can inform the Court of his or her decision to withdraw consent and to stop the process.
- Reconciliation: If both the parties decide to reconcile during the divorce proceedings and wish to remain married , then can request the Court to cancel the divorce Petition.
- Coercion, fraud, or misrepresentation: If one party believes that he or she was forced to agree to the divorce or if any fraudulent information was provided during the divorce proceedings, then he or she can ask the Court to cancel the Mutual Consent Divorce
Withdrawal of consent: Under divorce by mutual consent, there is a provision for a mandatory waiting period between the filing of the divorce petition and the finalization of the divorce called the "cooling-off period". This waiting period is designed to give the spouses a chance for consideration and possible reconciliation before the divorce is granted.
If a party withdraws his or her consent during the cooling-off period before the final Decree is issued by the Court, the process is effectively canceled and the Divorce cannot be granted.
Is withdrawal of divorce by mutual consent permanent?
If one party withdraws
consent during the divorce proceedings by mutual consent, the divorce proceedings
effectively stop, and the Court cannot compel the parties to continue the
divorce proceedings.
However, this does not
mean that the possibility of divorce will go away. The couple can reconsider
their decision and reach a new mutual agreement, and if they are able to agree
on the terms they can file a joint petition again for divorce by Mutual Consent
at a later stage.
Once the Mutual Consent
Divorce petition is withdrawn, the marriage remains intact as if the divorce
petition had never been filed by the parties. The couple can either continue
their relationship as husband and wife or later they can file a petition for
divorce under other legal grounds if mutual consent is no longer an option for
them.
2. After passing the Final Decree of Divorce:
When the court has
already granted a final decree of divorce to the parties, the chances of the
divorce decree being set aside are minimal, and only in certain exceptional
circumstances, such as fraud, coercion or mental incapacity, can the decree be
set aside.
Grounds for challenging a decree of mutual divorce:
Divorce by mutual consent can be challenged on the following valid legal grounds:
👉Fraud or misrepresentation: If one spouse has concealed important information, such as assets or income at the time of obtaining a divorce, the other spouse can challenge the divorce decree.
👉Coercion or undue influence: If one party was forced to agree to a divorce by mutual consent, the other can challenge it on these grounds.
👉Mistake or misunderstanding: If one spouse entered into the agreement based on a mistake, such as misunderstanding the terms of the agreement, the other can challenge the decree.
👉Mental incompetence: If one spouse was not mentally competent to understand or agree to the terms of the divorce at the time of signing, the other can challenge the decree.
👉Violation of legal
provisions: If proper legal guidelines were not followed in the divorce process
such as improper jurisdiction or procedural defects, either party can challenge
the decree.
Court Judgments:
The Supreme Court in the
case of Saroj Rani Versus Sudarshan Kumar Chadha (1984) held that, A Decree of
Divorce can be set aside/cancelled if it was obtained by fraud or if the
parties are reconciled after the divorce has been granted.
Similarly, the Supreme Court reiterated in the case of Yogendra Yadav Versus State of Jharkhand (2014) that consent must be genuine and continuous. However, once a final decree is passed, it becomes more challenging to overturn it, unless a party can prove that the consent was obtained under duress or fraud.
In a landmark judgment,
the Supreme Court in the case of Sureshta Devi Verus Om Prakash (1991)
clarified the key aspects of the divorce process by mutual consent under
Section 13B of the Hindu Marriage Act. In this case, the Supreme Court stated
that:
➧The consent given by
the parties should continue till the passing of the decree.
➧Either party may
withdraw its consent at any time before the final decree is passed.
➧If one party withdraws consent before the final decree, divorce cannot be granted.
Similarly in the case of
Anil Kumar Jain Versus Maya Jain, the Honorable Supreme Court held that, Mutual
consent for divorce should continue till the decree of divorce is passed. Also, the court has the
right to exercise its power given under Article 142 of the Indian Constitution
to ensure that justice is provided to the parties to the divorce.
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