The Hon’ble Supreme Court in the case of Sureshta Devi v. Om Prakash. it was made clear that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses.
In Pradeep Pant & anr v. Govt of NCT Delhi, the parties were married and had a daughter from their wedlock. However, due to temperamental differences between them, they were not able to live together and decided to live separately. Despite putting their best efforts they were unable to reconcile their marriage and could not see themselves living together as husband and wife ever again. A divorce petition was jointly filed and issues such as maintenance and custody of their child were decided and agreed upon by both.
The wife would get custody of their daughter and the husband would reserve visitation rights, it was mutually agreed upon by both of them. Both parties gave their free consent without any undue influence. The court observed that there was no scope of reconciliation and granted a decree of divorce.
In the case of Amardeep Singh v. Harveen Kaur, it was observed that the couple had internal disputes and their married life was not the best one. The disputes escalated really bad and many civil and criminal proceedings were followed.
They mutually decided to resolve all the disputes and file for divorce by mutual consent. The custody of their children would be with the husband, and permanent alimony was paid to the wife.
In another case of K. Omprakash v. K. Nalini, the parties were not happy with their marriage anymore and were allegedly having extramarital relationships. It was the contention of the petitioner that they were living apart without ever visiting each other for more than a year and so, there was no scope of reconciliation between them.
They blamed each other for their suffering and unhappiness. Both alleged each other to be involved in a series of illicit relationships but denied ever being involved in such relationships themselves.
There was no other option left but only to file for divorce by mutual consent. The marriage had suffered irretrievable damage and had reached a point of no return.
Both parties prayed for an instant divorce and a waiver of the waiting period. Observing that the parties had lived separately for long enough and there was no scope of getting the marriage to work again.
In Sureshta Devi v. Om Prakash, the wife’s consent was fraudulently obtained by the husband for filing a divorce. The wife was unwilling to give her consent for divorce and therefore she did unilaterally revoked her consent.
Upon reading the judgement of the Supreme Court we can conclude that a party can unilaterally withdraw their consent if the same has not been freely given.
After the first motion has been passed the parties will have agreed to settle on various issues such as alimony, custody of children and other marital expenses. Now, If one of the parties unilaterally withdraws their consent the other party may suffer prejudice that could be irreversible.
In Rajat Gupta v. Rupali Gupta, the court says that the agreement between the parties to settle their issues and opt for divorce by mutual consent is a binding agreement and a form of undertaking. If a party now unilaterally withdraws their consent, they would be in breach of their undertaking made before the court of law, resulting in civil contempt of court by wilfully disobeying an undertaking. If the consent has to be withdrawn unilaterally, it must be done so on a just and reasonable ground and the other party must not suffer prejudice.
Therefore, consent can be unilaterally withdrawn only in exceptional cases on reasonable grounds.