1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR F.A.NO.1049 of 2009. Sanyogita w/o Rajendra Junghare ..vs.. Rajendra s/o Madhuykar Junghare =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. S.P. Gadling, Adv. for appellant. Mr.A.D.Dangore, Adv. for the respondent. C ORAM : S.A.Bobde & M.L.Tahaliyani, JJ. DATED : 13th April, 2011. This is an appeal against the judgment and order of the Principal Judge, Family Court, Nagpur dated 22nd July, 2009. The parties have filed a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. During the period of six months as contemplated by the said provisions, the wife i.e. the appellant sought to withdraw her consent to the divorce by mutual consent. The Family Court, however, has held that the appellant is not entitled to withdraw her consent and therefore, the original prayer for dissolution of marriage will have to be considered. Accordingly, the learned Principal Judge, Family Court dissolved the marriage by decree for divorce by mutual consent. 2 We have considered the matter. It is obvious that there was no mutual consent and the consent, if any, was withdrawn by the appellant. It was in the circumstance not permissible for the learned Principal Judge, Family Court to treat the consent as not withdrawn and proceed to pass decree for mutual consent. This position of law is well settled by the Apex Court. The decision of the Supreme Court in the case of Sureshta Devi ..vs.. Om Prakash reported in 1991 Mh.L.J.324 has been approved by the larger Bench of the Supreme Court in the case of Smruti Pahariya ..vs.. Sanjay Pahariya, reported in 2009 (9) SRJ 256. The Supreme Court has observed as under - “47. We endorse the views taken by this Court in Sureshta Devi (supra) as we find that on a proper construction of the provision in Section 13B(1) and 13B (2), there is no scope of doubting the views taken in Shreshta Devi (supra). In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra (supra) has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.” Needless to say that in the case of Sureshta Devi, the court had observed that mutual consent should continue till 3 the divorce decree is passed and it is open to one of the parties at any time till the decree is passed to withdraw the consent and in such a case no decree for divorce under Section 13B of the Hindu Marriage Act can be made. In the circumstance, the judgment and order of the learned Family Court is set aside. No order as to costs. JUDGE JUDGE. chute