Restoration of a Mutual Consent Divorce Petition: Can One Spouse Alone Seek Restoration?

A significant question can arise when a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 is dismissed for non-prosecution: can one spouse alone apply for restoration, or must both spouses jointly seek restoration? A mutual consent divorce petition dismissed for non-prosecution or default can be restored by filing a joint application under Order 9 Rule 4 or Rule 8 read with Section 151 of the Code of Civil Procedure (CPC) before the concerned Family Court. [1]

The Rajasthan High Court considered this issue in a judgment dated 5 May 2023 and held that, in the circumstances before it, a restoration application filed by only one spouse was not maintainable. Thus, Restoration of a Mutual Consent Divorce Petition was decided.

Restoration of a Mutual Consent Divorce-Legal Principles

Joint Consent Required: Because a mutual consent divorce under Section 13B of the Hindu Marriage Act, 1955 requires the continuous and voluntary agreement of both spouses at every stage (including the first motion, the cooling-off period, and the second motion), courts generally hold that a restoration application should ideally be filed jointly by both parties. [1, 2, 3]

Single-Party (Unilateral) Restoration: If one spouse stops appearing or withdraws consent unilaterally, a single party cannot easily force a restoration or a decree for mutual divorce, as the court cannot grant a mutual consent divorce without concurrent consent. However, if the dismissal was due to a genuine, bona fide oversight (such as a miscommunicated date) and both parties remain willing, a restoration application can revive the petition to its original number. [1, 2, 3, 4]

Breach of Settlement: If one spouse backs out after a first motion or violates a financial/alimony settlement agreement, the aggrieved party may need to explore alternative remedies—such as converting the proceeding into a contested divorce petition under Section 13 or pursuing execution/contempt proceedings for breach of a formal settlement. [1, 2]

Background of the Case

The parties had decided to dissolve their marriage by mutual consent and had also arrived at a compromise.

Accordingly, they jointly filed a petition under Section 13B of the Hindu Marriage Act before the Family Court seeking a decree of divorce by mutual consent. The petition was filed jointly and was posted for the second motion and evidence of the parties.

However, neither spouse nor the counsel appearing for the petitioner appeared before the Family Court on several subsequent dates. Ultimately, the Family Court dismissed the mutual-consent divorce petition for default of appearance and non-prosecution.

Application for Restoration

One of the spouses subsequently filed an application under Order 9 Rules 4 and 8 CPC read with Section 151 CPC, seeking restoration of the dismissed divorce petition.

The explanation offered was that the applicant was residing outside India and could not appear because of circumstances prevailing during the COVID-19 period. The applicant also stated that the dismissal came to his knowledge later and that the restoration application was filed thereafter.

The other spouse opposed restoration.

The Family Court rejected the restoration application, leading to the appeal before the High Court.

The Main Legal Issue

The principal question before the High Court was:

When a petition under Section 13B HMA for divorce by mutual consent is dismissed for non-prosecution, can one spouse alone seek its restoration?

Section 13B Petition Is Fundamentally Joint

The High Court emphasised the nature of a mutual-consent divorce petition.

A petition under Section 13B HMA is filed jointly by the spouses and carries the signatures of both parties. In the case before the Court, the original petition had been jointly instituted, but both spouses subsequently failed to appear, resulting in dismissal for non-prosecution.

The Court therefore examined restoration not merely as an ordinary procedural application but in the context of the continuing requirement of mutual consent under Section 13B.

Why Joint Restoration Was Required

The decisive reasoning appears in paragraph 11 of the judgment.

The High Court held that, since the original mutual-consent divorce petition had been filed jointly and had been dismissed because both parties failed to appear, an application seeking restoration should also have been filed jointly by both parties.

Since the restoration application in the case had been filed by only one spouse, the Court held that it was not maintainable.

Importantly, the High Court stated that it was deciding the matter on this maintainability issue without entering into the other factual and legal issues raised by the parties.

Mutual Consent Must Continue

The judgment also records the respondent’s argument that, by the time the restoration application was considered, the respondent was no longer consenting to the divorce.

The respondent relied upon Supreme Court decisions including Smruti Pahariya v. Sanjay Pahariya and Hitesh Bhatnagar v. Deepa Bhatnagar, while opposing restoration.

This aspect highlights an important feature of Section 13B proceedings: mutual consent is not merely relevant at the time of filing; the parties’ consent remains central to the passing of a decree of divorce by mutual consent.

What About the Six-Month Period?

An argument was also advanced that the period contemplated under Section 13B should be treated as directory rather than mandatory, and that the statutory period could be waived.

The appellant relied upon decisions including:

Amardeep Singh v. Harveen Kaur
Amit Kumar v. Suman Beniwal
Rafiq v. Munshilal
Goswami Krishna Murarilal Sharma v. Dhan Prakash
Shillpa Sailesh v. Varun Sreenivasan

as well as decisions of the Bombay and Rajasthan High Courts.

However, the Rajasthan High Court did not decide these issues on merits because it found the restoration application itself not maintainable when filed by only one spouse.

Important Distinction: Restoration vs. Fresh Divorce Proceedings

This judgment should be understood in its specific factual and procedural context.

The Court was dealing with restoration of a joint Section 13B petition that had been dismissed for non-prosecution. It was not laying down a general rule that every matrimonial proceeding dismissed for default can never be restored at the instance of one party.

The decisive feature was that:

the original petition was a mutual-consent petition;
it had been filed jointly;
both parties had failed to appear;
and the restoration application was filed by only one spouse.

Also Read-Mutual Divorce Procedure in Easy Steps

Key Legal Takeaways

1. Mutual-consent divorce is based on continuing consent

A Section 13B proceeding fundamentally depends upon the mutual consent of both spouses.

2. Restoration of a dismissed joint petition can raise a maintainability issue

Where a jointly filed Section 13B petition has been dismissed for non-prosecution, the Rajasthan High Court held that restoration should be sought jointly by both spouses in the circumstances of this case.

3. One-sided restoration cannot revive mutual consent by itself

One spouse’s unilateral desire to revive a mutual-consent petition cannot, by itself, establish the other spouse’s continuing consent.

4. The Court did not decide the other issues

The High Court expressly declined to examine the other arguments and authorities because the restoration application failed on the maintainability issue itself.

5. Procedural strategy matters

Where a Section 13B petition has been dismissed for default, the parties should carefully examine:

who was absent;
the reason for non-appearance;
whether both spouses continue to consent;
the terms of the original compromise;
the applicable restoration provision; and
whether the restoration application is being filed jointly.

Also Read-Mutual Consent Divorce Steps Chandigarh Panchkula Mohali

Conclusion

The Rajasthan High Court’s decision provides an important procedural lesson concerning restoration of mutual-consent divorce petitions.

Where a Section 13B petition was jointly filed by both spouses but was subsequently dismissed for non-prosecution, the Court held that a restoration application filed by only one spouse was not maintainable in the circumstances of the case.

The decision reinforces the central principle that a mutual-consent divorce cannot be revived as a unilateral proceeding when the original petition itself was founded upon the consent of both spouses.

By Satish Mishra, Advocate (99888-17966)