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10. In the case of Avneesh Sood (supra), disputes and differences had arisen between the parties after a decade of their marriage and they had executed a Memorandum of Understanding (MOU) agreeing inter alia to seek divorce by mutual consent. The said MOU had recorded several terms and conditions for a one time settlement wherein the husband had agreed to pay a quantified amount to the wife, in installments. There were other terms and conditions laid down in the MOU, relating to the custody of their minor child. After execution of the MOU, the parties had filed a joint petition for dissolution of marriage by mutual consent under Section 13B(1) of the Act and had incorporated therein the terms and conditions of settlement, which were duly accepted by the court during the First motion proceedings. Later on, when the wife refused to cooperate with the husband for moving the Second motion petition under Section 13B(2) of the Act, he filed a contempt petition against the respondent/wife on the ground that she had withdrawn from the undertaking given by her to the court at the time of filing the petition for mutual divorce under Section 13B(1) of the Act before the Family Court. Relying on the decision of the Single Judge in the case of Shikha Bhatia (supra) and of the Karnataka High Court in the case of S. Balasubramaniyam v. P. Janakaraju & Anr. reported as 2004 (5) Kar. LJ 338 (DB), the learned Single Judge held the wife guilty of contempt of court for having breached the undertaking given to the learned ADJ in the First motion divorce proceedings under Section 13B(1) of the Act and issued a notice to show cause to her as to why she should not be punished for contempt of court, particularly when she had derived benefits from the husband in terms of the MOU.

20. Mr. Ashish Virmani, learned counsel largely supported the arguments addressed by Mr. Sunil Mittal, Senior Advocate. He referred to Supreme Court Bar Association vs. Union of India and Anr. reported as (1998) 4 SCC 409 and T. Sudhakar Prasad vs. Govt. of A.P. and Ors. reported as (2001) 1 SCC 516 to urge that powers of contempt are inherent powers vested in the Supreme Court and the High Courts that cannot be whittled down or taken away by any legislative enactment subordinate to the Constitution of India. The said powers must be exercised in circumstances where one of the parties breaches the terms and conditions of the settlement for obtaining a decree of divorce by mutual consent as contempt proceedings operate in an entirely different field and do not stem either from the provisions of Section 13B(1) or Section 13B(2) of the Act. He stated that the consequences of non-filing of the joint motion for mutual divorce under Section 13B(2) of the Act cannot impinge on the courts‟ independent powers to initiate contempt proceedings, after it has examined whether an undertaking has been furnished by a spouse and if so, whether there is any justification for violating the said undertaking.

31. As against the above view, in the case of Prakash Alumal Kalandari (supra), a Division Bench of the Bombay High Court had observed that the appellant/husband therein did not have the right to withdraw his consent for granting divorce under Section 13B of the Act and held as follows:-

"16. As aforesaid, if the Petition is filed "simplicitor under Section 13B of the Act" for divorce by mutual consent, the Court must satisfy itself that the consent given by the parties continues till the date of granting decree of divorce. Even if one party unilaterally withdraws his/her consent, the Court does not get jurisdiction to grant decree of divorce by mutual consent in view of the mandate of Section 13B of the Act. However, the situation would be different if the parties in the first instance resort to Petition for relief under Section 9 or 13 of the Act and during the pendency of such Petition, they decide to invite decree for divorce by mutual consent. On the basis of agreed arrangement, if the parties were to execute Consent Terms and then file a formal Petition/Application to convert the pending Petition to be treated as having been filed under Section 13B of the Act to grant decree of divorce by mutual consent, then, in the latter proceedings, before the decree is passed, one party cannot be allowed to unilaterally withdraw the consent if the other party has already acted upon the Consent Terms either wholly or in part to his/her detriment. In other words, the Court will have to be satisfied that: (i) there is sufficient, good and just cause for allowing the party to withdraw his consent, lest, it results in permitting the party to approbate and reprobate; (ii) that the other party would not suffer prejudice which is irreversible, due to withdrawal of the consent. If this twin requirement is not satisfied, the Court should be loath to entertain the prayer to allow the party to unilaterally withdraw his/her consent." (emphasis added)

―16. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.