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3. Facts leading to the filing of the present L.P.A. succinctly stated, are as under:

3.1 The parties to the proceedings submitted a joint application before the City Civil Court, Ahmedabad as contemplated under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for divorce by mutual consent on or about 21-8-1984, which has been numbered as H.M.P. No. 248 of 1984, wherein petitioner No. 1 is Ashok G. Hurra (hereinafter referred to as the husband) and petitioner No. 2 is Rupa (hereinafter referred to as the wife). This application for divorce by mutual consent was presented before the Registrar, City Civil Court, Ahmedabad, who admitted the application on the same day and kept over till six months. The proceedings were not placed before the Court at that time and the parties have not appeared before the learned trial Judge. Probably, the practice prevailing in the Court is that the matter should be kept over till six months in view of the provisions contained in Section 13B(2) of the Act. Section 13B(2) requires motion by both the parties. However, in the instant case, on behalf of the husband, an application Exh. 4 was tendered inter alia contending that the matter be placed before the Court for hearing. Accordingly, the application was placed before the Court for hearing on 15-4-1985. As the matter was placed on the Board for the first time and the Advocate for the wife being unaware (Exh. 4 being not a joint application), he requested the Court, vide Exh. 5, to grant time as wife was not informed and the matter was adjourned to 24-4-1985. On 24-4-1985 and 26-4-1985, the matter could not be proceeded on account of disturbance in the City. On 6-8-1985, Mr. Pathak, learned Advocate for wife filed his appearance. On 9-9-1985, the case was adjourned to 16-9-1985 and the Court conducted the proceedings in Chamber for reconciliation. The matter was adjourned to 30-9-1995 and in that date also, the matter was taken in chamber and the trial Judge tried for reconciliation and the matter was adjourned to 10-10-1985. The learned Advocates for the parties, on 10-10-1985 jointly requested for time as attempts were being made for reconciliation and the Court adjourned the matter to 21-10-1985. Thereafter on 21-10-1985, 31-10-1985 and 25-11-1985, the adjourned dates, the matter could not be taken up as the learned Judge was on leave. Thereafter, on 9-12-1985, the same was on Board and the learned Advocates jointly requested, vide Exh. 8, for time as the parties were negotiating for settlement and it was very likely that the matter may be settled. On 18-12-1985 and 26-12-1985, the learned Judge was on leave and the matter was adjourned. On 10-1-1986, learned Advocate for wife submitted an application for adjournment as he was out of station and the case was adjourned to 24-1-1986. On 24-1-1986, learned Advocate for husband applied for time, vide Exh. 10, on the ground that the husband is unable to remain present as he is engaged in other works and the Court adjourned the matter to 17-2-1986. On that date the matter was adjourned to 7-3-1986. On 7-3-1986, the matter could not be taken up as the learned Judge was on leave and the matter was adjourned to 27-3-1986 and on that date wife withdrew her consent stating in the application that "dissolution of their marriage is not in the interest of the applicants and that there is full scope for a reunion and there is every possibility to save their marriage." To this, the husband filed a reply, Exh. 12, denying the contention and raising a plea that withdrawal of consent is not according to law and consent cannot be revoked. Wife filed an affidavit in rejoinder and pointed out that it is open for her to revoke the consent and she is legally entitled to withdraw her consent. The learned Judge of the City Civil Court, after hearing the parties, following an observation of the Karnataka High Court with respect to consent, reported in AIR 1983 Karnataka 235 in the case of K. Krishnamurthy Rao v. Kamalakshi, taking a view that "the consent must continue to decree and must be valid, subsisting consent when the case is heard", dismissed the H.M.P. by judgment and order dated 17-10-1986 (pages 153 to 163), holding that when the wife has revoked her consent, it is not open for the Court to grant a decree of divorce, i.e., divorce by mutual consent under Section 13B of the Act.

(ii) that the order passed by the learned District Judge also relates to matters other than the divorce with mutual consent and therefore, the directions regarding matters extraneous to the grant of a decree for divorce deserves to be set aside.

The Rajasthan High Court's decision makes it clear that the parties jointly requested to exercise the jurisdiction under Section 13B of the Act by treating earlier application under Section 13 of the Act to be that under Section 13B of the Act and another joint application under Section 13B(2) of the Act was submitted to pass a decree. Under these circumstances, the Court rejected the contentions of the appellant-wife and held that the District Judge was right in treating the application dated 20-10-1982 as an application for divorce by mutual consent, and that even if the motion was not made within 18 months from 20-10-1982, the Court would not lose its jurisdiction to entertain the same and pass a decree in accordance with Sub-section (2) Section 13B. The Court further held that when the parties cannot live together, no undue importance to the form of the application or the time within which it has been made need not (sic.) be attached.

(Emphasis supplied by us) The Apex Court in paragraph 14 has made the position absolutely clear, which paragraph reads as under:

Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at the stage says that: "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard....

28. In the case of Chandrakala Menon v. Vipin Menon, reported in 1993(2) SCC 6, husband was a qualified Engineer and wife was doing her research for the degree of Ph. D. A daughter born out of the wedlock was living with her maternal grandparents at Bangalore. Parties filed a joint petition for divorce by mutual consent on 3-7-1992. Husband filed an application for custody of the child before the Family Court at Bangalore. Another divorce petition filed by the husband was pending before the Family Court at Bombay. Husband came to see his daughter and took her away to Bombay whereupon maternal grandfather lodged a complaint at the police station alleging that the husband and his sisters kidnapped Soumya, the granddaughter. Chief Metropolitan Magistrate took cognizance of the matter and directed the husband to produce the child on May 15, 1992. Father did not produce the child and sought an adjournment by a telegram. The Magistrate refused to grant adjournment and passed an order to the effect that maternal grandfather was entitled to the custody of the child and directed the husband to hand over the child to the police so that custody be restored to the maternal grandfather. The Magistrate further directed that if the child is not produced before the police, then the police should register a case against him and also proceed to declare him a proclaimed offender. The order was challenged under Section 482 of the Cr. P.C. The High Court quashed the order of the Magistrate by reaching a finding that the father being a natural guardian of the child, could not be charged with the offence of kidnapping. The matter was carried to the Supreme Court by the wife and her father. The Apex Court was of the view that for doing complete justice to the parties, it is necessary to settle all the disputes pending between them. Therefore, in the facts of the case, observing that the "petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 (the Act) is pending since July 3, 1992", the Apex Court granted decree of divorce by mutual consent. The custody of daughter was ordered to be given to the wife with permission to the husband to visit his daughter. Therefore, in that case, the consent subsisted at that stage of entertaining an application for divorce by mutual consent. The facts of the instant case, as discussed above, are far too different than the aforesaid case and a distinctive factor being that the consent is withdrawn and husband created a situation which is uncalled for.