Ramendra Narayan Roy, and anr. Vs. State of Bihar, and anr.

.....that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the court to dissolve the marriage by mutual consent, if the consent was otherwise free. the issue that came up for consideration before this court was, whether a party to a petition for divorce by mutual consent under section 13-b of the act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. if petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. in our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under section 13-b. so in cases under section 13-b, mutual consent of the parties is a jurisdictional fact. the court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent." the petition is not withdrawn by either party at any time before passing the decree; the most important requirement for a grant of a divorce by mutual consent is free consent of both the parties......complainant and other allegation are mentioned in the complaint petition.3. none has appeared on behalf of opp.party no.2. it appears from the ordersheet that on earlier occasion even prior to the admission of the case none had appeared despite the fact that vakalatnama was already filed on behalf of opp.party no.2.4. at the very outset, dr. binay kumar singh, learned counsel appearing on behalf of the petitioners submits that during the pendency of this petition, a compromise in between the parties has already arrived and it appears that due to compromise, opp.party no.2 is not taking any interest in the present proceeding. in paragraph 2 of the complaint petition itself, the complainant had stated that he was/is ready to pay the legal and rightful dues of the bank and offered on several dates for healthy compromise for one time settlement. on the basis of contents of the complaint petition, the court is of the opinion that the present case was filed only with a view to pressurize the bank for coming to a compromise. the complainant has also admitted that huge amount was outstanding, which was required to be refunded by the complainant to the bank. on perusal of the materials available on record, the court is of the opinion that the present complaint was not filed honestly and fairly, rather it was filed with oblique motive, which has already been indicated in the complaint petition.5. accordingly, i am of the view that allowing the prosecution of the petitioners on such allegation will amount to allowing the abuse of the process of the court and with a view to prevent the abuse of the process of the court, the court is of the opinion that the order of cognizance as well as entire prosecution is liable to be set aside.6. accordingly, the order dated 30.4.2007 passed by learned judicial magistrate, 1st class, patna in complaint case no.378 (c) of 2007 as well as entire proceedings in complaint case no.378 of 2007 is hereby set aside and the petition stands allowed.