Can a Spouse Withdraw Consent After First Motion in Mutual Divorce? Settlement, Refund, Contempt & Dhananjay Rathi 2026

By Adv. Govind Bali | Fastrack Legal Solutions LLP

Mutual consent divorce is built on consent. Matrimonial settlements are built on contractual, equitable and judicial finality. When one spouse withdraws after first motion—especially after money, jewellery, property or withdrawal of criminal proceedings has already changed hands—those two principles collide.

1. Section 13B requires mutual consent

Section 13B of the Hindu Marriage Act provides for divorce by mutual consent. The classic Supreme Court authorities, including Sureshta Devi v. Om Prakash and Hitesh Bhatnagar v. Deepa Bhatnagar, recognise that consent must exist when the decree is passed. In an ordinary Family Court proceeding, one spouse cannot usually be compelled into a Section 13B decree merely because first motion was earlier recorded.

2. First motion is not the divorce decree

The first motion records the parties’ joint decision and statutory circumstances. The marriage remains legally subsisting until a decree is passed. Even where the six-month period is waived under Amardeep Singh v. Harveen Kaur, the requirement of mutuality should not be confused with the cooling-off period.

3. Settlement agreement creates a second layer of obligations

A spouse may have a statutory ability to withdraw consent from the mutual-divorce process yet remain answerable for breaching separate settlement obligations. A settlement may require payment of alimony, return of stridhan, transfer of property, withdrawal of contested divorce, quashing cooperation, custody arrangements or execution of documents. The consequences of breaching those terms are not identical to the question whether the Family Court can still grant mutual divorce.

4. Dhananjay Rathi v. Ruchika Rathi — 2026 INSC 360

The Supreme Court’s reportable judgment dated 13 April 2026 is now essential reading. The parties had entered a detailed court-referred mediation settlement. They agreed to mutual divorce and a full-and-final financial/property arrangement. The husband withdrew his contested divorce petition, paid ₹75 lakh as the first settlement instalment, paid ₹14 lakh for a car and returned jewellery. The wife also transferred more than ₹2.52 crore in accordance with the settlement. First motion was allowed. The wife later withdrew consent and filed DV proceedings.

The Supreme Court expressly observed that although it is legally permissible for a party to withdraw consent before the grant of divorce by mutual agreement, where a full-and-final settlement has been entered, it is not open to a party simply to step back from the settlement terms. The Court said departure from an authenticated mediated settlement, later confirmed before court, should be dealt with strictly and that a resiling party must show legally sustainable reasons.

5. What grounds may justify resiling from a settlement?

Dhananjay Rathi recognised the distinction between genuine challenge and mere change of mind. Grounds such as force, fraud, undue influence or non-fulfilment of the opposite party’s obligations may affect enforceability. An allegation should be specific and supported; merely saying “I no longer agree” is different from proving that the settlement was legally vitiated.

6. Supreme Court used Article 142—not ordinary Family Court power

This distinction is critical. The Supreme Court ultimately found complete and irretrievable breakdown and used Article 142 to dissolve the marriage, while addressing the settlement. A Family Court does not possess the Supreme Court’s Article 142 power. Therefore Dhananjay Rathi should not be cited as though every Family Court can force a second motion after consent is withdrawn.

7. What happens to money already paid?

The answer depends on the settlement. If ₹25 lakh was paid specifically against first motion, and the receiving spouse later refuses second motion, the payer may seek refund/disgorgement or enforcement according to the settlement and court orders. In Dhananjay Rathi, substantial reciprocal performance was central to the Court’s assessment of prejudice and settlement integrity.

8. Never pay the entire settlement before reciprocal milestones without protection

A safer structure divides payment across objectively verifiable events. For example:

• defined amount at first motion;
• defined amount at execution of property/stridhan documents;
• defined amount at second motion/decree;
• defined balance at FIR quashing or another final reciprocal step.

The exact structure must be lawful and case-specific, but it should prevent one party from fully performing while the other retains all leverage.

9. Can contempt be filed?

Possibly, where the settlement terms were converted into a clear undertaking to court and the alleged breach is wilful. But contempt is not automatic. In the Section 13B context, earlier case law has cautioned that an undertaking connected with consent may interact with the statutory requirement that consent continue until second motion. The precise language of the undertaking and later Supreme Court jurisprudence must be examined.

10. Can the contested divorce be revived?

If the original contested case was withdrawn pursuant to settlement and the settlement contains a revival clause on default, an application may be possible depending on the order and procedure. Without such a clause, restoration is not automatic. The withdrawal order, settlement terms and applicable CPC/Family Court principles must be read together.

11. Can old DV or maintenance proceedings be restored?

Again, not automatically. In Renu v. Manoj Kumar, Saket District Court in July 2026 declined to restore a disposed DV complaint merely because settlement obligations were allegedly breached, noting that the appropriate course was enforcement through competent proceedings. A default clause should therefore identify the exact cases that may revive and the legal mechanism.

12. Can a fresh DV case be filed after settlement?

Fresh acts may raise fresh legal questions. But re-packaging settled pre-settlement claims can face serious challenge. In both Dhananjay Rathi and the August 2026 Supreme Court decision in Reji Baby v. Subi Mary, the Court emphasised the binding character of consciously executed matrimonial settlements and rejected attempts to ignore settled financial claims without legally displacing the settlement.

13. Refund clause should be explicit

A settlement should state whether amounts received at first motion become refundable if the recipient, without legally recognised justification, refuses to perform second motion. It should also address interest, time for refund, adjustment against other claims and security.

14. What if the payer defaults instead?

A spouse is not expected to perform the other side’s second-motion obligations while the payer materially defaults if the settlement makes performance reciprocal. If non-payment is the reason consent is withdrawn, that is materially different from accepting all benefits and walking away without justification.

15. What if consent is withdrawn because of fraud or coercion?

The allegation should be raised promptly and through an appropriate challenge. Courts will examine timing, legal advice, mediation participation, sworn statements, benefits accepted and subsequent conduct. A person who repeatedly affirmed the settlement and accepted performance may face a higher evidentiary burden when later alleging coercion.

16. Mediation settlements are not casual negotiations

The Supreme Court in Dhananjay Rathi strongly defended mediation finality. Once parties use court-referred mediation, sign a detailed agreement and act upon it, later unjustified resilement undermines the mediation process and can attract serious judicial consequences including costs.

17. Can High Court grant divorce if one spouse withdraws?

A High Court exercising ordinary appellate jurisdiction does not have Article 142. Whether another statutory ground or appellate relief is available depends on the case. The fact that the marriage is irretrievably broken may inform legal analysis, but irretrievable breakdown is not by itself a general statutory Section 13 ground before every court.

18. Supreme Court Article 142 route

Where proceedings reach the Supreme Court and the marriage is found totally unworkable and beyond reconciliation, Shilpa Sailesh permits the Supreme Court, in appropriate cases, to exercise Article 142 to dissolve the marriage on irretrievable breakdown. Dhananjay Rathi is a 2026 example where settlement resilement formed part of the overall factual matrix.

19. Settlement-drafting protections

• precise instalment schedule;
• refund/disgorgement clause;
• interest on unjustified retention;
• revival clause identifying specific cases;
• obligation to cooperate in first and second motion;
• property/stridhan handover schedule;
• consequence if payer defaults;
• consequence if recipient withdraws without legally recognised ground;
• representation that agreement is voluntary and after independent legal advice;
• court-recorded statements consistent with the written settlement.

20. What if one spouse has already remarried or changed position?

Until a valid divorce decree exists, remarriage raises serious legal issues. Parties should never assume that first motion or a settlement itself dissolves the marriage. The legal marital status must be verified before remarriage.

21. Practical response when the other spouse backs out

1. Obtain the complete mediation settlement.
2. Obtain first-motion order and sworn undertakings.
3. Prepare a performance ledger: money, jewellery, property, withdrawals completed by each side.
4. Identify the stated reason for withdrawal.
5. Check refund/revival/default clauses.
6. Preserve bank and document-transfer evidence.
7. Choose the appropriate remedy—refund, execution, restoration, contempt, appellate relief or other proceedings—without assuming mutual divorce can simply be forced.

22. Frequently asked questions

Can my spouse withdraw consent after first motion?

Under the ordinary Section 13B framework, consent ordinarily has to continue until the decree, so withdrawal before decree is legally significant. But withdrawal does not necessarily erase a binding settlement or money/property obligations already performed.

Can Family Court still grant mutual divorce without consent?

Ordinarily no. Do not confuse the Supreme Court’s Article 142 power in Dhananjay Rathi with ordinary Family Court jurisdiction.

I paid the first alimony instalment and my spouse backed out. Can I recover it?

Potentially, depending on the settlement terms and court orders. Refund/disgorgement, execution or other relief may be available.

Can I file contempt?

Only where there is a legally enforceable court order/undertaking and the requirements of contempt are satisfied. It is not an automatic consequence of every failed settlement.

Can settled claims be reopened?

Not merely by ignoring the settlement. A valid challenge to the settlement or a legally distinct fresh cause of action may be required.

23. Practitioner conclusion

The 2026 law requires two propositions to be kept separate. First, mutual divorce remains consensual and an ordinary court generally requires continuing consent. Second, a court-mediated settlement is not a disposable piece of paper: after substantial reciprocal performance, unjustified withdrawal can trigger refund, enforcement, costs and, in Supreme Court proceedings, Article 142 consequences. The safest strategy is to draft the settlement so that no party can exploit the gap between first motion and final decree without a clear financial and procedural consequence.

Related reading: Non-Payment of Lump-Sum Alimony After Settlement, Matrimonial Settlement Agreement in India, and Irretrievable Breakdown of Marriage 2026.

Disclaimer: General legal information only. Settlement enforceability and mutual-consent procedure depend on the exact agreement, court undertakings, payments and procedural history.