Can Mutual Divorce Be Withdrawn After Filing?

Written by Adv. Aman Chawla | Matrimonial Law Specialist | Delhi High Court & Supreme Court of India  Exclusive Practice in Family & Matrimonial Law | July 2026

Quick Answer

Yes, mutual consent for divorce under Section 13B of the Hindu Marriage Act, 1955 can technically be withdrawn by either spouse any time before the final decree is passed — even after the first motion. However, following the Delhi High Court’s ruling in Rajat Gupta v. Rupali Gupta, withdrawal is no longer a free pass: if a spouse backs out for mala fide or dishonest reasons after signing a settlement (MOU), they can face contempt proceedings and other consequences. Whether withdrawal succeeds now often depends on how carefully the original MOU and first-motion petition were drafted.

The Deeper Explanation

Under Section 13B of the Hindu Marriage Act, 1955, a mutual consent divorce happens in two stages. The first motion is a joint statement to the family court that both spouses want to separate and have agreed on terms, alimony, custody, property. The second motion, filed after a statutory cooling-off period of six to eighteen months, is where the court actually examines the couple, confirms consent still exists, and grants the decree.

That gap between the two motions exists for a reason — the law wants couples to have a real chance to reconsider before their marriage is legally dissolved. For decades, the settled position — laid down by the Supreme Court in Sureshta Devi v. Om Prakash — was that consent had to remain valid right up to the moment the decree was passed. If either spouse changed their mind at any point before the second motion, they could simply not appear, or file an application withdrawing consent, and the court could not force a divorce on them.

This is still the core legal position. Marriage under Indian law cannot be dissolved against one party’s will merely because they agreed earlier — consent is not a contract that binds you forever.

But the landscape shifted with Rajat Gupta v. Rupali Gupta, decided by the Delhi High Court. In this case, a larger bench dealt with a batch of contempt petitions where one spouse — after signing a detailed MOU and completing the first motion — refused to go through with the second motion, causing serious prejudice to the other party who had already acted on the settlement (paid alimony, vacated property, given up claims). The court held that while a person cannot be compelled to give a decree of divorce, they can be held liable for contempt if they had given a clear, unconditional undertaking to the court to file the second motion and then wilfully broke that undertaking without sufficient cause.

In practical terms, this means: withdrawing consent doesn’t automatically get you off the hook anymore. If your MOU or first-motion petition contains a clear undertaking to the court — not just to your spouse — that you will proceed to the second motion, backing out without genuine, bona fide reasons can expose you to contempt of court proceedings, apart from other civil consequences like loss of benefits already received under the settlement.

The distinction courts draw is between a genuine change of heart (parties decide to reconcile, or one spouse realises the terms were unfair or signed under pressure) and a mala fide withdrawal — where someone uses the first motion strategically to extract benefits (alimony, custody terms, vacating a matrimonial home) and then refuses to complete the process once they’ve gotten what they wanted.

This is exactly why the drafting of the MOU and first-motion petition matters far more today than it did a decade ago.

What Actually Happens in Court (Saket, Patiala House & Karkardooma)

In my experience appearing before the family courts at Saket, Patiala House, and Karkardooma, there are really two different withdrawal scenarios judges see. In the first, both parties genuinely want to reconcile after the first motion and jointly withdraw — courts rarely question this, since the law itself gives couples time to rethink before the second motion. The second, trickier scenario is where only one spouse unilaterally withdraws consent. Since Rajat Gupta v. Rupali Gupta, it has become genuinely difficult for that spouse to walk away cleanly if the MOU is well drafted. I make sure every MOU I draft has an explicit penalty clause, a contempt-of-court clause tied to the undertaking, a status quo ante clause, and a declaration that both parties signed in sound mind, without pressure, after reading and understanding every term — with every page signed and thumb-impressed.

FAQ

Can my spouse be forced to complete the second motion after withdrawing consent?

No, a court cannot compel someone to give a divorce decree against their genuine will — consent must exist at the time the decree is passed. But if the withdrawal is found to be mala fide and breaches an undertaking given to the court, the withdrawing spouse can face contempt proceedings and lose settlement benefits.

What is the difference between the first motion and second motion in mutual divorce?

The first motion is the joint petition filed under Section 13B(1), where the couple tells the family court they’ve mutually agreed to separate and states their settlement terms. The second motion, under Section 13B(2), is filed after the cooling-off period and results in the actual divorce decree.

Can the six-month cooling-off period be waived?

Yes, in certain cases the Supreme Court has permitted family courts to waive this period where reconciliation attempts have genuinely failed and the parties have settled all disputes, though this remains at the court’s discretion.

What should be included in a mutual divorce MOU to prevent unfair withdrawal?

A strong MOU should include a clear undertaking to the court, a penalty clause, a contempt-of-court clause, a sound-mind and no-pressure declaration, a status quo ante clause, and page-by-page signatures with thumb impressions.

Does withdrawing consent affect maintenance or custody already agreed upon?

It can — if one spouse has already received benefits (money, possession of property, custody arrangements) under the settlement and then withdraws consent in bad faith, courts have held them accountable for those benefits and the broken undertaking.

Which law governs mutual consent divorce for Hindus in Delhi?

Mutual consent divorce for Hindus is governed by Section 13B of the Hindu Marriage Act, 1955; couples married under the Special Marriage Act, 1954 follow the corresponding provision under Section 28 of that Act.

— Adv. Aman Chawla, Family Law Expert

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. As per the Rules of the Bar Council of India, advocates are not permitted to advertise or solicit work, and nothing in this article should be construed as advertising, solicitation, or an invitation to engage this firm. Readers should consult a qualified advocate regarding their specific circumstances before taking any legal action.

Written by Adv. Aman Chawla. This article is for informational purposes only and does not constitute legal advice. Every case is fact-specific. Please consult a qualified lawyer before taking any legal action.