What Happens If Your Husband or Wife Refuses Mutual Divorce?

Why Both Motions Require Continued Consent

Section 13B of the Hindu Marriage Act, 1955 is built on a simple but strict premise: the divorce is granted because both spouses agree, not because one spouse has proven fault against the other. That agreement is not a one-time event captured at the first motion — it must exist continuously, all the way through to the moment the court actually passes the decree at the second motion. This is why courts record statements from both spouses twice: once at the first motion to confirm the petition is genuinely voluntary, and again at the second motion to confirm that nothing has changed in the intervening period. If a spouse who agreed enthusiastically at the first motion has a change of heart before the second motion, the court cannot simply proceed on the strength of the earlier statement. The law treats the second confirmation as equally essential, and without it, a decree cannot be granted on the mutual consent route.

Is Withdrawing Consent After the First Motion Even Allowed?

Yes — and this is a point that often surprises clients. The Supreme Court has repeatedly confirmed that consent in a mutual divorce petition must subsist until the decree is actually passed, and either spouse is free to withdraw it at any stage before that point, including after the first motion and even on the date fixed for the second motion. This principle has been affirmed in rulings including Smruti Pahariya v Sanjay Pahariya, where the Supreme Court held that a party can unilaterally withdraw consent at any time before the decree is passed, and the court cannot compel a spouse to go through with a mutual divorce once that consent is withdrawn.

How Withdrawal Interacts With the Cooling-Off Period

The mandatory cooling-off period between the first and second motion — ordinarily six months, and extendable up to eighteen months, though sometimes waivable on request — exists precisely to give both spouses time to reconsider. It is, in a sense, the law's built-in opportunity for exactly this kind of change of mind to surface. A spouse can withdraw consent at any point during this cooling-off period, simply by informing the court or by not appearing to confirm consent at the second motion when it comes up for hearing. Because the cooling-off period is meant to allow reflection, courts do not treat a withdrawal during this window as unusual or suspicious on its own — it is, procedurally, exactly what the waiting period anticipates might happen in some cases. Where the cooling-off period has been waived by the court because both spouses asked for it, a withdrawal shortly afterward can raise more questions, but it remains legally permissible until the decree is actually passed.

What Happens to Your Case If Consent Is Withdrawn

Once a spouse formally withdraws consent, the Family Court cannot proceed with the mutual consent petition any further — the petition as filed effectively comes to an end, because its entire legal basis was joint agreement. The settlement terms that were negotiated — covering alimony, custody, or property — do not automatically survive either, though a written and signed settlement agreement may still carry contractual weight and could be relevant evidence in later proceedings, depending on how it was drafted. The spouse who still wishes to separate is not left without any option, but the path forward changes considerably: instead of relying on mutual agreement, they would need to consider filing a fresh, contested divorce petition under Section 13 of the Hindu Marriage Act, which requires establishing a specific legal ground such as cruelty, desertion for a continuous period of at least two years, or adultery, supported by evidence.

Realistic Next Steps If Your Spouse Has Refused

Reducing the Risk of This Happening in the First Place

While consent can always be withdrawn by law, some practical steps reduce the chance of it happening unexpectedly. A thorough, fair, and clearly documented settlement — one that both spouses genuinely feel is reasonable, not merely signed under pressure — is far less likely to be abandoned midway. Open, honest communication about financial terms, custody arrangements, and expectations before the petition is even filed also helps surface disagreements early, when they are easier to resolve, rather than at the second motion when a withdrawal can cause significant delay and cost. If you sense hesitation from your spouse at any stage, raising it directly, ideally with legal guidance, is usually more productive than hoping it resolves on its own.

Frequently Asked Questions

For a full walkthrough of how a mutual consent case is meant to proceed when both spouses do stay in agreement, see our guide on the mutual consent divorce process in Odisha. If you expect to move toward a contested matter, read more on contested divorce in Odisha. For Bhubaneswar residents specifically, our divorce lawyer Bhubaneswar page and our guide on the divorce process in Bhubaneswar cover the filing process in more depth.