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The application so made under Sub-section (1) is inquired into if, in the meantime, it is not withdrawn. Sub-section (2) provides that the Court shall, on being satisfied after hearing the parties and after making such inquiry as it thinks fit that the averments in the petition are true, pass a decree for divorce,

6. The application (Exhibit 5) made by the husband and his affidavit filed in the lower Court both together can be construed to mean that the husband wants to withdraw his consent. In addition, there are also certain averments to suggest that he wants to say that his consent was not a free consent, though there was no question of fraud, undue influence, etc. The question is as to whether a party to a joint petition for divorce by mutual consent can withdraw the petition. It was contended by Shri Tipnis that such a withdrawal by one party alone is not permissible. He argued that Section 13B contemplates a joint application by both and that a withdrawal of this type of application can be made jointly by both and not by either party. He further submitted that the scheme of Section 13B would be frustrated if it is held that after having made a joint application any party can withdraw that application and that too without the consent of the other party. Of course, he, is frank enough in stating that during an inquiry contemplated under Sub-section (2), either party can satisfy the Court that the conditions necessary for passing a decree for divorce by mutual consent were not existing at the time when the petition was filed. As against this, Shri Gokhale for the respondent submitted that the said section has made a provision for divorce by mutual consent and that so long as a decree for divorce is not passed, it would be permissible for either party to withdraw the consent and thereby withdraw the petition.

9. It was next contended by Shri Gokhale that at any rate either the husband or the wife would be able to withdraw the consent that was given (while filing the divorce petition) for having a mutual divorce. He argued that the consent, of the parties should be there at the time when the petition was filed and it should also continue to be in existence till the Court grants a decree for divorce. A reading of Section 13B would show that what is necessary is that there should be a consent for mutual divorce at the time when the petition is filed. If that consent is a free consent of both the parties, it will not be possible for any of them to nullify the petition by saying that though initially the consent was voluntarily given, still the said party now intends to withdraw it. This position can very well be seen when we take into account the scope of an inquiry contemplated under Sub-section (2). I have already observed that the inquiry should be more particularly directed in order to find out as to whether the averments in the petition are true or not. As far as the consent aspect is concerned, the inquiry should obviously be with respect to the consent that was mentioned in the petition. It will not be possible for any party to voluntarily agree to have a divorce by mutual consent or to revoke or withdraw that consent at a later stage. Such permission would nullify the very purpose of a joint application and hence I am not able to accept this contention of Shri Gokhale.

11. In my opinion, there appears to be no substance in this contention of the husband. I have already observed that the earlier Hindu Marriage Petition No. 59 of 1982 was withdrawn by he wife principally for the purpose of filing another application for divorce by mutual consent. The withdrawal of the said petition was not opposed and on that very day the present petition for divorce by mutual consent was filed by both the husband and the wife. At Exhibit 11 there is a receipt executed by the husband stating therein that he got possession of the various articles mentioned therein. Serial No. 1 is the Mangalsutra, i.e., one Vati and two beads. Serial No. 9 is also another Mangalsutra. The husband got these articles back. At Serial Nos. 2 to 8 there were other miscellaneous articles such as coat, pant, which were given to the husband (presumably from the bride's side) at the time of the marriage. There is also a mention of a cap, a shirt, a pair of shoes, a neck-tie and a pair of socks, etc. In addition, at Serial No. 7 there is a mention of a sari which must have been given to the mother of the husband at the time of the marriage. The receipt (Exhibit 11) states that the husband did not like to take back all these sundry articles and that he got possession of the two Mangal-sutras. At Exhibit 10 there is another receipt executed by the wife on the very day, i.e., on 12-7-1982. It is a receipt with respect to certain articles handed over by the husband to the wife. It is needless to say that that receipt contains a number of household articles, clothes, saris, etc. All this shows that on the day on which the marriage petition was filed, the parties exchanged the articles (including ornaments) which were agreed to be kept by each of them. These two documents would be a good indication to show that the husband was not in a vacillating or indecisive mood when the joint petition for divorce by mutual consent was filed on, that very day. The husband was cross-examined in the trial Court. The cross-examination appears on page 19 of the paper book. Neither fraud was practised on him nor there was any coercion when he filed the petition for divorce by mutual consent. He admitted that on that very day he returned all the ornaments and articles as discussed above and that this was done in the presence of his Advocate. He also admitted that he received back the Mangalsutra. The above-mentioned circumstances would definitely show that the husband has filed the petition along with his wife for a divorce by mutual consent and that while doing so, he acted voluntarily. There was no question of any confused state of mind. Thus, here is a case where there is abundant evidence to show that at the time when the application was made the husband and the wife had mutually agreed that the marriage should be dissolved. Similarly, the various circumstances do indicate that the parties have been residing separately for more than one year and that there was no possibility of their living together. These are all the requirements under Section 13B for making a joint application for divorce. Once these requirements are proved, it would be necessary for the Court to grant a decree for divorce. The fact that at a later stage either party does not want a divorce would be irrelevant. What is material is as to whether the above-mentioned requirements were existing when the petition was filed.

12. In view of the above discussion, this is a clear case where a divorce by mutual consent should have been granted. The appeal is, therefore, allowed. The decree passed by the trial Court is set aside and in its place a decree for divorce (by mutual consent as contemplated by Section 13B) is hereby passed so as to dissolve the marriage between the husband and the wife. Parties to bear their own costs throughout.