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13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub- section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that 'on the motion of both the parties. ... if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...'. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the 9 FCA / 37 / 2023 instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."
43. 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 while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such 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."

(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and

(c) The petition is not withdrawn by either party at any time before passing the decree.

In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression "divorce by mutual consent" would be otiose.

18. These observations would clearly operate against the appellants and since the right to seek divorce was a personal right of deceased Aniket and the principle being actio personalis moritur cum persona, cause of action would not survive to the appellants and the petition for divorce by mutual consent would stand abated as has been correctly concluded by the learned Judge in the impugned order.

19. So far as the division bench judgment in Prakash Kalandari (supra) is concerned, the fact situation was clearly different. A petition for divorce was filed which was initially not a petition for divorce by mutual consent as contemplated under section 13-B of the Act. The parties had arrived at a compromise before a counsellor in terms of rule 31 of the Family Courts (Marriage Rules), 1987, which 13 FCA / 37 / 2023 were framed under section 21 of the Family Courts Act, which enabled the Court to pronounce the decree on the basis of the consent terms reduced into writing and signed by the parties unless it were contrary to the public policy. It was also noticed that substantial compliances were made by one of the spouses and the consent was sought to be withdrawn unilaterally by the other spouse without making out the ground that it was obtained by coercion, fraud or undue influence as contemplated under section 23.