The short answer
Yes, a mutual consent divorce can be challenged in India, but the scope is narrow. One spouse can withdraw consent at any time before the decree is passed, and a decree already granted can be challenged on grounds such as fraud, suppression of material facts, want of genuine consent or lack of jurisdiction, usually by way of an appeal.
The rule that consent must survive until the decree
The leading principle is that consent in a mutual consent divorce must continue right up to the moment the decree is passed. In Sureshta Devi v. Om Prakash (1991), the Supreme Court held that a party to a joint petition is not bound by the consent given at the first motion. Consent is a continuing requirement, and if it is withdrawn before the second motion, the court cannot grant a decree.
This follows from the language of Section 13B of the Hindu Marriage Act, 1955, which speaks of the parties having agreed that the marriage should be dissolved. Once that agreement falls away, the statutory foundation of the petition falls with it, and there is nothing left for the court to act upon.
The same reasoning applies to joint petitions under Section 28 of the Special Marriage Act, 1954 and to consensual divorce under other personal laws. The label of the statute changes; the requirement that consent be live at the decree does not.
It follows that a joint petition is not a contract that either side can hold the other to. The court's jurisdiction is founded on an agreement that exists when the decree is sought, and the moment that agreement ends, the foundation ends with it.
Withdrawing consent before the second motion
A spouse who no longer wishes to divorce can say so when the case comes up. The court will record the withdrawal and dismiss the petition. Neither party can be forced into a divorce against their will, because the entire jurisdiction of the court under Section 13B rests on a subsisting agreement.
If both parties withdraw, the petition is dismissed. If either later changes their mind again, a fresh joint petition has to be filed and the waiting period runs anew. Withdrawal does not, by itself, settle maintenance or custody for all time, and it does not stop a spouse from later filing a fresh petition, whether joint or contested.
There is one practical caution. A party who withdraws consent and then, years later, seeks to resile from a settlement clause may find that the delay works against them, because courts expect the parties to be consistent and to act promptly.
The stage at which a party acts therefore matters a great deal. A withdrawal recorded before the second motion simply ends the joint petition, whereas an attempt to reopen a matter after a decree has been passed must clear the higher hurdles of appeal and fraud.
Challenging a decree that has already been passed
Once the decree is passed, the route changes. A party aggrieved by a decree of a Family Court can appeal to the High Court under Section 19 of the Family Courts Act, 1984. Where the decree was passed by a court that is not a Family Court, the appeal lies under Section 28 of the Hindu Marriage Act, 1955.
An appeal is not a fresh trial of the marriage. It is an attack on the decree, so the appellant must point to a legal error, a procedural defect, or a wrong that goes to the root of the consent itself. A mere change of heart after the decree is not a ground, and courts do not reopen a decree simply because a party now regrets the settlement.
Where the decree was obtained by fraud practised on the court, the remedy may be a separate proceeding to set it aside, in addition to an appeal. Fraud that misled the court is treated as a special category, and the ordinary bar on re-opening a decided matter does not protect a decree that was built on it.
An appeal does not automatically stay the decree. If the appellant fears that the other side will act on the divorce, for example by remarrying or by transferring property, a separate application for a stay or for interim protection is needed, and it should be moved along with the appeal.
Grounds that can succeed
| Basis of challenge | What must be shown |
|---|---|
| Fraud or misrepresentation | Consent was obtained by a false promise or by concealment of a fact that mattered |
| Suppression of material facts | A key fact, such as an earlier subsisting marriage or a pending case, was hidden from the court |
| Want of genuine consent | A party did not freely consent, or consent was withdrawn before the decree |
| Lack of jurisdiction | The court that passed the decree had no territorial or pecuniary jurisdiction over the matter |
| Non-compliance with Section 13B | The mandatory procedure, such as recording statements at both motions, was not followed |
Each of these has to be proved with material, not assertion. A bare allegation that consent was not genuine carries little weight unless it is supported by the record of the trial court or by documents that came to light after the decree. The evidence that matters most is usually on the court file itself, which is why the order sheet is examined clause by clause.
- A certified copy of the decree and judgment, to show what the court actually recorded.
- The statements taken at the first and second motions, which reveal whether consent was live.
- Any agreement signed by both parties, and proof of what was actually paid or done under it.
- Documents that came to light after the decree, such as a record of a subsisting earlier marriage.
Time limits for an appeal or review
| Action | Time limit |
|---|---|
| Appeal to the High Court | Ordinarily ninety days under the Limitation Act, 1963; delay can be condoned on sufficient cause |
| Appeal under Section 28, Hindu Marriage Act, 1955 | Ninety days under Section 28(4) of that Act |
| Review of the decree | Soon after the ground is discovered; no open-ended window |
| Setting aside a decree obtained by fraud | Counted from the date the fraud comes to light |
Appeal periods are strict. A certified copy of the decree and of the judgment must usually be obtained and filed with the appeal, and time spent in getting the copy is often excluded when computing the limitation. This is a technical area, so dates should be checked against the order sheet and, where the period has run, an application for condonation of delay must be moved with reasons.
What happens if one spouse simply stops appearing
Non-appearance at the second motion is treated as a withdrawal of consent. The petition is dismissed; it is not decreed. A spouse who still wants the divorce must start again, and a fresh waiting period applies. This is why courts insist that both parties appear in person at both stages and why an advocate will never file a mutual consent petition on the basis of an uncertain agreement.
A party who wishes to block the divorce therefore has a lawful route: attend the first motion if needed, then do not appear or state on the record that consent is withdrawn at the second stage. That ends the joint petition without any finding against either side on the merits. It does not, however, permanently prevent the other spouse from filing a contested petition on a recognised ground.
A record of non-appearance is not a victory on the merits for either side. It leaves the parties where they began in substance, except that the earlier consent is spent, so the spouse who wants the divorce has to begin again from a fresh petition.
Steps if you want to challenge or defend a decree
- Obtain a certified copy of the decree and the judgment without delay, as the appeal period is counted from the decree.
- Read the trial court record to see exactly what statements were recorded at each motion and what settlement was accepted.
- Identify the ground of challenge and collect the evidence that supports it, including documents that surfaced after the decree.
- File the appeal in the High Court, or the appropriate setting-aside petition, within the limitation period, with an application if there is delay.
- Apply for interim protection, such as a stay, if the other side is acting on the decree meanwhile, for example by remarrying.
- Keep the maintenance and custody arrangements in view, since those are often separately enforceable even while the divorce is under challenge.
An appeal or a fresh proceeding is best filed with certified copies of the decree and the judgment, because the court will want to see exactly what was recorded at each motion. The order sheet is often the most revealing document in the whole file.
Getting advice at the right stage
The stage at which you seek advice decides what is possible. Before the decree, the question is whether consent still subsists, so the remedy is a withdrawal at the second motion. After the decree, the question is whether there is a legal defect worth an appeal, and the timelines are unforgiving. If you are weighing a joint petition in the first place, read our guide on how long a mutual consent divorce takes so you know the schedule you are committing to. For help with a specific file, book a free consultation or look at the services offered here.