IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.719 of 2010 BHARAT BHUSHAN SAH, Son of Sri Shivjee Sah, resident of village Chak Bidaulia, P.S. – Bibhutipur, District – Samastipur. …. Applicant-Appellant. Versus KHUSBOO KUMARI, wife of Bharat Bhushan Sah, daughter of Sri Suresh Sah, resident of village – Bhairopatti, P.S. – Ghatho (Dalsingsarai), District – Samastipur. …. Applicant-Respondent. ----------- For the Appellant :- Mr. Ashok Kumar Mishra, Advocate. For the Respondent :- Mr. Navin Prasad Singh, Advocate. Mr. Narayan Singh, Advocate. 04/ 18.03.2011 Heard the parties in respect of I.A. No. 7755 of 2010 filed under Section 5 of the Limitation Act and also on the merits of the appeal. For the reasons mentioned in the said I.A., the delay of about seven weeks in preferring this appeal is condoned. The I.A. stands allowed. On merits, the simple issue falling for determination is whether the court below would have granted divorce under Section 13(B) of the Hindu Marriage Act, 1955 when the respondent-wife had withdrawn her application indicating withdrawal of her consent for divorce. Learned counsel for the appellant submits that according to Section 13(B)(2) an application for divorce 2 by mutual consent can be allowed on the motion of both the parties only after expiry of six months but before expiry of eighteen months from the date of making the application and hence for withdrawal of the petition there must be a motion of both the parties. We are unable to accept the aforesaid contention. From the plain wordings of sub-section 2(2) of Section 13(B) of the Hindu Marriage Act, it is evident that while motion of both the parties as per time frame indicated, is essential for passing a decree of divorce by the concerned court, there is no stipulation that the petition of consent cannot be withdrawn by either of the parties. In our view, the court below has taken correct view that for a decree of divorce on mutual consent, the consent of both the parties is essential and it must exist till a decree of divorce is passed. In the present case, the major issue raised is that the wife is unjustified in withdrawing her consent. Such issue is not germane for deciding the correctness of the judgment and order under appeal because once the consent is withdrawn for any reason, the court below could not have passed a decree for dissolution of marriage 3 and divorce on the basis of mutual consent. In view of aforesaid facts and discussions, we find no merit in this appeal. It is, accordingly, dismissed at the stage of Order XLI Rule 11 of the Code of Civil Procedure. Kundan (Shiva Kirti Singh, J.) (Gopal Prasad, J.)