JUDGMENT
Janardan Sahai, J.
1. The petitioner Smt. Poonam Sharma and Dr. Girish Kumar Sharma the respondent No. 2 were married in the year 1986. A joint petition for divorce under Section 13B of the Hindu Marriage Act was filed by the parties in the year 2005. Subsequently the petitioner applied for withdrawing her consent. The application for withdrawal of the consent was opposed by the respondent No. 2 Dr. Girish Kumar Sharma. The family court passed an order dated 4.12.2006 holding that before the petitioner could be allowed to withdraw her consent it was necessary to examine whether the consent first given by her was voluntary or was obtained by coercion etc. and whether the withdrawal of the consent is also bona fide and that on these points the parties should be allowed to adduce evidence. On 18.4.2007, the family court framed three issues : whether the consent of the petitioner Smt. Poonam Sharma in the joint petition was obtained by fraud and whether application for withdrawing her consent was bona fide and a third issue regarding relief. Both these orders have been challenged by the petitioner in this writ petition.
2. It is submitted by the petitioner’s counsel that the right to withdraw consent can be exercised unilaterally and the court below has erred in directing issues to be framed. On the other hand it is submitted by the respondent’s counsel that the parties had settled their rights in respect of their properties and other matters including custody of children and withdrawal of consent would be unjust and that the petitioner has no unconditional and unilateral right to withdraw the consent. In order to appreciate the submissions advanced it is necessary to refer to the pleadings of the parties.
3. It is stated in the joint petition that two daughters Km. Shruti Sharma then aged 17 years and Km. Kirti Sharma then aged about 16 years were born of the wedlock. In paragraph 7 it is alleged that during the long span of marriage every thing went quite smoothly but about two years back it transpired that the parties had lost love and faith for each other. In paragraph 8 it is alleged that there were temperamental differences between the parties reaching a level it had become impossible for them to live together. In paragraph 9 it was stated that the parties started to live separately and Dr. Girish Kumar Sharma left the company of his wife on 5.8.2004. The joint petition also contains certain averments regarding the arrangement/settlement of certain properties. In paragraph 11 it is stated that it was mutually agreed that Smt. Poonam Sharma shall be the exclusive owner of House No. A-45, Samrat Palace, Meerut and that Dr. Girish Kumar Sharma shall vacate the said premises by the date of filing of the petition. In paragraph 12 it is alleged that there is another property, which is a plot at Shatabdi Nagar, A-115, Sector-5 Pocket A, Meerut and Smt. Poonam Sharma has transferred the said plot by executing a sale deed in favour of Dr. Girish Kumar Sharma on 24.8.2005. It is also stated in this paragraph that Dr. Girish Kumar Sharma took a loan upon this property and that he would clear the said dues and deliver a receipt of the same to Smt. Poonam Sharma who would be entitled to get the sale deed back from the bank. In paragraph 13 it is stated that Smt. Poonam Sharma would have no right over plot No. B-42, Phase II, Ved Vyaspuri, Meerut. In paragraph 14 it is stated that there is a joint application that Sahara City Homes in respect of which Rs. one lac has been deposited and that Dr. Girish Kumar Sharma has waived his right regarding the said deposit. In paragraph 15 it is stated that Smt. Poonam Sharma has waived her right of maintenance and stridhan from Dr. Girish Kumar Sharma but Dr. Girish Kumar Sharma shall pay Rs. 15,000 per month to Smt. Poonam Sharma for maintenance of the children regularly. In paragraph 16 it is stated that Dr. Girish Kumar Sharma has withdrawn the Civil Suit No. 674 of 2005, which is pending in the Court of Civil Judge (Senior Division), Meerut in which 24.8.2005 was fixed and that he would not make any claim regarding the said property in any court of law. In paragraph 17 it is stated that both the children will live with Smt. Poonam Sharma and Dr. Girish Kumar Sharma would not claim their custody but he would be at liberty to meet his children. This joint petition is dated 29.8.2005.
4. The application dated 26.8.2006 for withdrawal of her consent from the joint petition was filed by the petitioner on the ground that her daughters Shruti Sharma aged about 18 years and Kirti Sharma aged about 17 years were grown up and were receiving education in Bangalore and Meerut respectively and the petitioner being their mother was extremely worried and concerned about the future of her daughters who were drawing close to marriageable age, that Dr. Girish Kumar Sharma had wrangled her consent by pressure, coercion, persuasion and fraud to which she fell prey and realizing that divorce would be a social stigma and would stick to her daughters also she was not a willing party to the divorce petition.
5. Section 13B (1) of the Hindu Marriage Act provides that a joint petition for divorce may be made on the ground that the parties have been living separately for a period of one year or more and have not been able to live together and have mutually agreed that the marriage be dissolved. Sub-section (2) of Section 13B of the Act provides that on the motion of both the parties made not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date if the petition is not withdrawn in the meantime the Courts shall on being satisfied that the marriage has been solemnized and that the averments in the petition are true pass a decree of divorce. From the provisions of Sub-section (2) of Section 13B of the Act it is clear that a second motion has to be made jointly by the parties not earlier than six months after the divorce petition is presented. The purpose of requiring the parties to make a joint motion not before six months appears to be to give the parties time to think over the matter. In Smt. Sureshta Devi v. Om Prakash , it was held that a party to a petition for divorce by mutual consent can unilaterally withdraw the consent and that the consent once given is not irrevocable. It was held that the period of waiting from 6 to 18 months is an interregnum obviously to give time and opportunity to the parties to reflect on their move and to seek advice from relation and friends and that in this transitional period a party may have second thoughts and change his mind not to proceed with the petition and that spouse may not be a party to the second motion. If one party withdraws his consent a decree by mutual consent cannot be passed under Section 13B.
6. In a subsequent decision Ashok Hurra v. Rupa Bipin Zaveri AIR 1997 SC 1226 : 1997 (3) AWC 1843 (SC), the observations in Smt. Sureshta Devi’s case, that mutual consent should continue till a decree is passed were doubted as being too wide. In Hurra’s case, the wife did not withdraw her consent within 18 months from the date of presentation of the petition. It was found on facts that the husband had remarried and begotten a child during the pendency of the divorce proceedings and that the marriage had irretrievably broken down. The Supreme Court granted a decree for divorce. The decision in Smt. Sureshta Devi and Ashok Hurra’s were considered by the Delhi High Court in Rachna Jain v. Neeraj Jain 120 (2005) DLT 305. In that case the husband had sought unilaterally to withdraw from the consent given in the joint petition. It was found that there was no undue influence, coercion or pressure at the time of the filing of the joint petition. It was also found that parties had settled their affairs and had compromised all the disputes. It was found that the wife had given up her claim for maintenance for herself and her daughters, had withdrawn a criminal complaint filed by her in the hope of starting her life afresh and it was held that in such circumstances the consent could not be allowed to be withdrawn. The Delhi High Court held that the minimum waiting period of six months for filing the second motion under Section 13B (2) of the Hindu Marriage Act was directory and if the Court is satisfied, the period can be waived. Smt. Sureshta Devi’s case was distinguished on the ground that in that case the wife had disputed having given free consent at the time of filing of the joint petition. Relying upon Hurra’s case the Delhi High Court refused to permit the husband from withdrawing the consent given by him as there was nothing to show that the consent originally given was tainted with any fraud or coercion.
7. From the decision of the Apex Court in Sureshta Devi’s case, it appears that ordinarily, a party has a right to withdraw his consent if the application is bona fide. That appears to be the legislative intent in view of the provisions in Section 13B (2) for a second joint motion and also from the fact that a minimum waiting period of six months for the joint motion has been fixed. If a party changes his/her mind bona fide the consent can be withdrawn but if the withdrawal of the consent is tainted with fraud or is mala fide and works as an injustice upon the other spouse, the withdrawal of the consent ought to be refused for fraud and justice never dwell together and every act ecclesiastical or temporal tainted with fraud can be avoided. A party would also be estopped from withdrawing his consent if he has taken advantage of any settlement or arrangement made with the other party in view of the agreement for divorce. Withdrawing the consent in such a case would work as an injustice upon the other spouse. The averment made in the joint petition regarding the settlement of property disputes, agreement relating to custody of children enumerated in the joint petition reference of which has already been made indicate that permission of unilateral withdrawal by the wife may work as an injustice upon the husband. The orders impugned do not suffer from any illegality. The family court was, therefore, right in framing the issues, which it has framed. There is no merit in this petition. It is dismissed.