What happens if one party withdraws consent in mutual divorce?

In mutual divorce proceedings under Indian family law, both parties must agree to the divorce petition. If one party withdraws their consent, the situation becomes legally complicated. Mutual consent divorce relies on the agreement of both spouses, and the withdrawal of one party's consent can halt or disrupt the divorce process.

What Happens If One Party Withdraws Consent in Mutual Divorce?

Impact on the Divorce Process

Mutual Divorce Relies on Consent

• For a mutual divorce to proceed, both parties must be in full agreement.
• If one party withdraws consent, the divorce petition cannot proceed as mutual anymore.
• The court will likely view this as a failure to meet the legal criteria for mutual consent.

Discontinuation of Mutual Divorce

• If one party withdraws their consent, the mutual divorce process is effectively canceled.
• The case may be dismissed or put on hold.
• The court will no longer proceed with the case as a mutual divorce.

Transformation into Contested Divorce

• If one party withdraws consent but the other party still wants the divorce, the case may transform into a contested divorce.
• The party seeking divorce will have to file a new petition under the grounds provided in the Hindu Marriage Act or the Special Marriage Act.
• Examples of grounds for a contested divorce include cruelty, adultery, or desertion.

Contested Divorce

• A contested divorce is a lengthy process where one party may challenge the divorce on legal grounds.
• The court has to make a decision, and the person seeking divorce will need to prove the grounds on which they are filing.

Cooling-Off Period Impact

• Under both the Hindu Marriage Act and Special Marriage Act, the court generally imposes a cooling-off period of 6 months between the filing and finalization of the mutual divorce petition.
• If one party withdraws consent during this period, it is unlikely that the divorce will be granted, and the case may be dismissed.
• If the cooling-off period has passed but one party withdraws consent at the second hearing, the court will usually not proceed with the divorce until both parties reaffirm their desire to dissolve the marriage.

Reconciliation Opportunities

• If one party withdraws consent, the court may see this as an opportunity for reconciliation.
• The court could suggest counseling sessions or give the couple some time to resolve their differences.

Court’s Role

• In many cases, the court may ask both parties to attend mediation or counseling to see if there is a possibility of saving the marriage.
• If the parties agree, they might opt for reconciliation rather than pursuing divorce.

Legal Consequences of Withdrawal

No Divorce Granted

• If one party withdraws consent, the mutual divorce petition will likely be rejected or dismissed.
• No divorce decree will be passed until both parties are in agreement.

Case Resets

• If the withdrawing party later agrees to divorce, the entire petition process will need to be restarted.
• This could be done with a fresh petition and potentially in a contested manner.

Court Fees

• The filing party may incur legal costs as the case progresses into a contested divorce.
• These costs are generally non-refundable, especially if the case was initiated and then withdrawn by one party.

Effects on Alimony and Child Custody

• If one party withdraws consent, any previous settlements agreed upon, including alimony or property division, may become void unless both parties renegotiate them.
• In mutual divorce cases, child custody arrangements are typically agreed upon by both parties.
• If one party withdraws consent, it could complicate matters related to child custody or visitation rights, and the issue may need to be handled through family court proceedings.

Example

• Filing the Petition: Nina and Ravi file a mutual divorce petition with the Family Court, agreeing to dissolve their marriage. The court schedules hearings for the mutual consent divorce, with a cooling-off period of six months.
• Withdrawal of Consent: Three months into the process, Nina suddenly withdraws her consent to the divorce, stating that she no longer wishes to proceed. As a result, the divorce petition can no longer proceed as a mutual divorce.
• Court’s Decision: The court may dismiss the mutual divorce petition or ask Ravi if he wants to proceed with a contested divorce. Since Nina is not agreeing to the divorce, Ravi may now have to file for divorce on grounds like cruelty or desertion.
• Reconciliation and Counseling: The court may suggest reconciliation counseling or a period of reflection before Ravi can proceed with the divorce. However, if Nina maintains her decision not to proceed, the case may turn into a contested divorce.
• Final Outcome: If Ravi still desires divorce, he will need to prove grounds for divorce and move forward with contested divorce proceedings. This will involve witnesses, evidence, and court hearings.

Legal Protections and Consumer Actions

Seek Legal Advice

• If one party withdraws consent in a mutual divorce, it is advisable to consult a family lawyer immediately.
• A lawyer can guide the withdrawing party about the implications of their actions and assist the other party in filing for a contested divorce if necessary.

Reconciliation Options

• The court may suggest counseling or reconciliation in cases where one party withdraws consent.
• Both parties should seriously consider mediation or counseling to try to resolve the issues in their marriage before proceeding with legal action.

Decide Whether to Proceed

• If one party withdraws consent, the other party should decide whether they wish to continue pursuing a contested divorce or accept the reconciliation path suggested by the court.

Document Agreement and Settlement

• In cases where mutual divorce is agreed upon and the petition is filed, it is important to document any agreements on property division, alimony, and child custody in writing to avoid confusion or legal disputes later if one party withdraws consent.

Conclusion

• If one party withdraws consent in a mutual divorce case, the process is essentially terminated.
• The divorce petition can no longer proceed under mutual consent, and the case may be transformed into a contested divorce.
• In such a situation, the withdrawing party may reconcile or engage in counseling, or the case may continue with the other party seeking a divorce under specific grounds.
• The impact of this withdrawal can be significant, as it can cause delays, financial costs, and emotional strain.
• It’s important for both parties to understand the legal implications and seek professional advice to navigate this situation effectively.