Rama Jois, J.
1. In this Miscellaneous Appeal, arising under the provisions of the Hindu Marriage Act, 1955, the following question of law arises for consideration :
Whether the Court before which a petition under Section 13B of the Hindu Marriage Act 1955 seeking decree of divorce by consent is presented can proceed to consider the petition on merits, after the expiry of six months from the date of presentation, if one of the parties to the petition withdraws the consent given or refuses to join the other to make. a motion for consideration of the petition on merits?
2. The facts of the -case, in brief, are as follows.: The marriage between the appellant and the respondent took place on 22-2-1981. An application was made before the Court of the City Civil Judge, Bangalore on 7-8-1985 under Section 13B of the Hindu Marriage Act, 1955 (the Act' for short). It was registered as M.C. No. 210/85. No steps were taken by both the parties for the disposal of the petition which they could have done after the expiry of six months from the date of presentation of the petition and before the expiry of 12 months thereafter, in view of -sub-section (2) of Section 13B of the Act. On 28-1-1987 the respondent filed an application under Sections 24, and 25 of the Act seeking maintenance from the appellant. According to the learned counsel for the respondent, the statement made in the application by the respondent was that she was no longer interested in getting divorce by consent. A copy of the application filed and the objection filed by the appellant to it have been produced. The appellant in his objection to the application stated thus:
'It is submitted that this application is not maintainable as the 2nd petitioner has withdrawn her consent for the relief jointly prayed for, the main petition itself does not survive and hence no interlocutory applications are not (sic) maintainable.'
Thereafter the matter came up before the learned Judge on 10-4-1987. On that date, the respondent filed an affidavit before the learned Judge stating that she had already withdrawn the consent and was no longer willing to press the application made under Section 13B of the Act.
3. In view of the above submission and also for the reason that already 18 months had elapsed from the date of presentation of the petition, the learned Judge proceeded to dismiss the application. Aggrieved by the said order, the appellant has presented this appeal.
4. Sri Nijalingappa, learned Counsel for the appellant contended that once an application by consent of both the parties was made before the learned Judge under Section 13B of the Act, the said application could be withdrawn jointly by both the parties and not at the instance of one of the parties to the application. In support of the above submission, the learned Counsel, relied on the judgment of Punjab, High Court in Nachattar Singh v. Harcharan Kaur reported in . Relevant portion of the judgment reads :
'A reading of the sub-section would show that the scheme of Section 13B of the Act does not envisage withdrawal of consent by one party. The petition can be dismissed as withdrawn only if both the parties who had filed the petition together agree to withdraw the same.'
Learned Counsel, submitted, that as in the present case the appellant had not agreed to withdraw the application, the learned Judge ought, to have disposed of the, petition on merits. He submitted that if, on evidence it was proved that the respondent had given consent out of her free will and volition on the date of the petition, the Court was bound to grant the decree.
5. Sri Ravi Prakash, learned counsel for the respondent, submitted that the contention urged for the appellant was untenable. He maintained that if consent is withdrawn by one of the parties at any time before the hearing, the Court has no other alternative than to dismiss the application.
6. Order to appreciate the rival contentions it is necessary to set out S. 13B of the Act. It reads:
'13B(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree; of divorce may be presented to the district Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, -1976, on the ground that they have been living separately for a period of 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.
(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making, such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.'
7. A careful analysis of the provision would show that S. 13-B which provides that husband and wife could seek divorce by mutual agreement by making a joint petition imposes several conditions f or the making, as also for consideration of the petition. They are:
(1) The husband and wife must have been living separately for a period of one year or more before the date of that petition and that they have not been able to live together,
(2) They have mutually -agreed that the marriage should be dissolved;
(3) The petition when made by consent of both the 'parties, can be taken for consideration by the Court only after the expiry of six months after the date of presentation of the petition and before the expiry of eighteen months from the date;
(4) The motion for consideration of the petition after six months after the presentation must be made by both the parties;
(5) The petition if withdrawn in the meantime i.e., before the expiry of eighteen months from the date of presentation of the petition, it cannot be considered.
If any one of the conditions set out above is not satisfied, no decree for divorce under section 13B of the Act can be granted.
8.In this case, the fourth and the fifth conditions are not satisfied. Firstly, both the parties did not move the Court for taking the petition for consideration. Secondly the respondent withdrew the consent before the expiry of 18 months from the date of presentation of the petition, which tantamounts to withdrawal of the petition, for, by such withdrawal of consent, the consideration of the petition by that Court on merits is rendered impossible, as it could be done only if a motion for consideration is made by both the parties. Therefore, it appears to us that the learned Judge was right in dismissing the petition on the ground that no order can be passed under Section 13B of the Act.
9. With great respect to the learned Judge of the Punjab and Haryana High Court we are unable to agree, that after a petition is signed and filed in Court by both the parties under S. 13-B(l) it cannot be withdrawn by one of them. The very condition prescribed in S. 13-B(2) of the Act namely that the petition has to be considered on the motion of both the parties, means, if one of the parties declines t6 join the other to make a motion for consideration of the petition on merits, after six months after the date of presentation of the, petition, consideration of the petition on its merits becomes impossible. Therefore it is clear that while it is open for both the parties to withdraw the petition jointly, it is also open to one of the parties at her or his option, not to join the other to make a motion .for consideration of the petition, in which event, the Court has no power to consider the petition on its merits. That is what happened in this case. Therefore, the learned Judge had no option than to dismiss the petition. In fact as shown earlier the appellant himself in his objection to the application for maintenance, has stated so, though he has contended to the contrary in this appeal.
10. Our view receives support from a Division Bench judgment of this Court, in: Krishnamurthy Rao v. Kamalakshi, : AIR1983Kant235 . In that case Jagannatha Shetty J., (as he then was) held that the consent, in the context of passing a decree for divorce, must subsist on the date of hearing. Therefore consent given on the date of petition is not final and irrevocable. If so there was no necessity for the Legislature to, impose the two conditions in Section 13-B(2) viz., (1) bar for 'consideration of the petition for a period of six months and (2) the consideration of the petition could be only on the motion of both the parties. Therefore, we are of the view that the respondent was entitled to withdraw the consent for divorce given in the petition and when she did so the Court was right in dismissing the petition, indeed it had no other option.
11. The learned counsel for the appellant submitted that the learned Judge was not right in holding that the petition could not be considered after the expiry of eighteen month from the date of petition. He submitted that if a petition presented under S. 13-B(l) was not withdrawn within a period of eighteen months, it could be, considered on its merits even thereafter. In support of this contention the learned Counsel relied on the judgment of the Rajasthan High Court in Santosh Kumari v. Virendra Kumar, .
12. Such a question would arise, if in a given case, both the parties press for consideration of the petition after the expiry of eighteen months. In this case, no such question arose for consideration and therefore it was unnecessary for the learned Judge to state that the petition could not be considered after the expiry of eighteen months from the date of its presentation, as it could not be considered in view of the withdrawal of consent by the respondent within eighteen months. Therefore we leave that question open.
13. In the result, we answer the question set out first as follows:
'The Court, before which a petition under Section 13-B of the Hindu Marriage Act 1955,seeking divorce by consent. is presented, cannot proceed to consider the petition on merits, after the expiry of six months from the date of presentation, if one of the parties to the petition withdraws the consent given or refuses to join the other to make A motion for consideration of the petition on merits.'
14. Accordingly we make the following order:
The Appeal is dismissed.
15. Appeal dismissed.