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14. Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that I have withdrawn my consent", or I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent.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 S.B.CIVIL MISC. APPEAL NO. 1250/2008 Anil Khatwani vs. Nistha Khatwani Judgment dt:10/5/2012 to make a decree solely 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 13-B. 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. Invoking their powers under Section 142 of the Constitution, their Lordships further held that even though in the present case respondent wife has made it very clear that she will not live with the petitioner husband but on the other hand she is also not agreeable to mutual divorce, the Court held that as a part of agreement between the parties, the appellant husband had transferred valuable property rights in favour of respondent wife and it was after registration of property that she withdrew her consent, while she continued to enjoy said property but insisted on living separately from the husband, the Court held that it was a fit case where Supreme Court may exercise powers under Article 142 of the Constitution and grant divorce by mutual consent under Section 13B of the Act by inferring the continued consent on the part of respondent wife. However, putting the word of caution, the Supreme Court said that these powers under Article 142 of the Constitution only vested with the Supreme Court and no lower court including High Court had such power to pass a S.B.CIVIL MISC. APPEAL NO. 1250/2008 Anil Khatwani vs. Nistha Khatwani Judgment dt:10/5/2012 decree for mutual divorce, if one of the consenting party withdraws his/her consent before decree is passed on the doctrine of irretrievable breakdown of the marriage. Relevant extract from the judgment in para 27 to 35, as appearing in the Head Notes of SCC including the reference to various case laws, is reproduced here under for ready reference:-

In the instant case, the respondent wife has made it very clear that she will not live with the petitioner, but, on the other hand, she is also not agreeable to a mutual divorce. In ordinary circumstances, the petitioner's remedy would lie in filing a separate petition before the Family Court under Section 13,on the grounds available, but in the present case there are certain admitted facts which attract Section 13-B. The stand of the respondent wife that she wants to live separately from her husband but is not agreeable to a mutual divorce is not acceptable, since living separately is one of the grounds for grant of a mutual divorce and admittedly the parties are living separately for more than seven years. As part of the agreement between the parties the appellant had transferred valuable property rights in favour of the respondent and it was after registration of such transfer of property that she withdrew her consent for divorce. She still continues to enjoy the property and insists on living separately from the husband.

Sureshta Devi v. Om Prakash, (191) 2 SCC 25 : 1991 SCC (Cri) 292; Beales v. Beales, 1972 Fam 210: (1972) 2 WLR 972: (1972) 2 All ER 667; Rupa Ashok Kumar Hurra v. Ashok Hurra, (2002) 4 SCC 388, relied on."

30. Recently, the two Judges bench of Apex Court in Hitesh Bhatnagar vs. Deepa Bhatnagar - 2011(2) RLW (SC) 1471 after discussing the previous case laws referred to above, held that if the second motion is not made within a period of 18 months then the Court is not bound to pass the decree of divorce by mutual consent and most important requirement for grant of divorce on mutual consent is free consent of both the parties and in that case where no S.B.CIVIL MISC. APPEAL NO. 1250/2008 Anil Khatwani vs. Nistha Khatwani Judgment dt:10/5/2012 second motion was made by the parties, which was mandatory requirement of law, no Court can pass the decree of divorce in the absence of that. The period of 18 months was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent. Ultimately, the Court refused to grant the decree of divorce by mutual consent even though parties have lived separately for 11 years, quoting the poet George Eliot painting the pain of separation. One could not do better than to quote para 15, 16 and 26 from the said judgment: