ORDER : Rajani Dubey J. 1. Heard on admission. 2. The appellant has filed the present appeal against the order dated 11.09.2024 passed by the learned 3 rd Additional Principal Judge, Family Court, Durg (C.G.) in Civil Suit No.814/2023, whereby the learned Family Court dismissed the application filed by the appellant and the respondent jointly under Section 13 (B) of the Hindu Marriage Act. 3. Brief facts of the case are that the marriage of the appellant and the respondent was solemnized on 14.04.2000 as per Hindu Rites and Rituals at Durg but soon after their marriage, dispute arose between them and they started living separately. Subsequently, they filed mutual divorce case under Section 13 (B) of the Hindu Marriage Act on the condition that the appellant would pay Rs.20 Lakhs to the respondent wife, which according to the appellant he has already paid the said amount, but after getting the said amount, the wife did not appear before the learned Family Court, as such the appellant’s application has been dismissed by the learned Family Court, against which the present appeal has been filed. 4. Learned counsel for the appellant submits that the order passed by the learned Family Court is erroneous, arbitrary and contrary to material available on record and therefore the same is liable to be set aside. The learned Family Court has failed to appreciate that the respondent deliberately with malafide intention was not appearing before the Family Court for recording her statement as she already received total maintenance amount of Rs.20,00,000/- from the appellant. On the date of filing of joint application under Section 13 (B) of Hindu Marriage Act, appellant paid the amount of Rs. 10,00,000/- to respondent and it is already mentioned in their application filed jointly by appellant and respondent but the Family Court while dismissing the application mentioned that in record it has not been shown and for proving the same it requires the presence of respondent and in her absence, application for mutual divorce cannot be entertained. Thus, the impugned order deserves to be set aside. 5. No one appears on behalf of the respondent despite the notice being served. 6. Heard learned counsel for the appellant and perused the material available on record. 7. Thus, the impugned order deserves to be set aside. 5. No one appears on behalf of the respondent despite the notice being served. 6. Heard learned counsel for the appellant and perused the material available on record. 7. It is clear from the record of the learned Trial Court that both the parties husband and wife filed application under Section 13 (B) of the Hindu Marriage Act before the learned Family Court on 11.08.2023. The learned Family Court registered the case on 22.08.2023 and counseling was done between both the parties but they were not ready to live together and the case was again fixed for counseling on 27.10.2023, but on that date compromise was not done and the case was fixed for statement of the parties on 20.11.2023. On 20.11.2023, case was adjourned due to condolence meet. On 04.12.2023, demand draft of Rs.10 Lakhs was filed by the applicant No.1 husband i.e. the appellant which was attached with the file and the case was fixed for statement on 12.02.2024. On 12.02.2024 again time was sought by both the parties and on 26.02.2024, demand draft was given to the applicant No.2 wife, which was encashed by her and the same came in the order sheet and the case was fixed for 07.03.2024 and subsequently also the case was adjourned on 23.03.2024, 05.04.2024, 16.04.2024 and 18.04.2024. The applicant No.2 remained absent so notice was issued to the applicant No.2. On 29.06.2024, service report of applicant No.2 was received but she remained absent and thereafter also case was fixed for 6 times but she remained absent. On 11.09.2024, the learned Family Court after hearing argument of non applicant No.1 husband dismissed the application filed by both the parties on this ground that the applicant No.2 did not appear before the Family Court and in absence of applicant No.2 her statement could not be recorded. The appellant has also failed to prove this fact that the balance amount of Rs.10 Lakh was given to the respondent wife, as no evidence or proof in this regard was submitted by him, accordingly the learned Family Court dismissed the application of the appellant. 8. The appellant has also failed to prove this fact that the balance amount of Rs.10 Lakh was given to the respondent wife, as no evidence or proof in this regard was submitted by him, accordingly the learned Family Court dismissed the application of the appellant. 8. The main objection of the learned counsel for the appellant is that as per conditions of the application filed under Section 13 (B), the husband/appellant paid the whole amount of Rs.20 Lakhs but the respondent wife after receiving the said amount remained absent malafidely before the Family Court, thus the conduct of the wife is not fair but the learned Family Court did not appreciate the conduct of the wife and wrongly dismissed the application. 9. Section 13 (B) of the Hindu Marriage Act provides as under:- “13 (B) – Divorce by mutual consent – (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]” 10. It is clear from the provisions of Section 13 (B) (2) that the Court shall fix the date after 6 months of the presentation of the petition and if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. 11. It is clear from the order sheets of the learned Family Court that after receiving Rs.10 Lakhs on 26.02.2024, the applicant No.2 wife remained absent on further hearing. The learned Family Court again issued notice to wife but she did not appear before the Court and vide order dated 11.09.2024 the learned Family Court held that since statement of the parties could not be recorded and without hearing the applicant No.2 wife, it would not be justifiable to pass final order and accordingly dismissed the application. 12. Learned counsel for the appellant placed his reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Ajay vs Shyamli , reported in (2022) SCC Online Bom 302 but the said judgment is distinguishable in the facts and circumstances of the present case. 13. A divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 requires the free and voluntary consent of both parties. The process is based on the mutual desire of the couple to dissolve the marriage. There is a mandatory cooling-off period ranging from six to eighteen months after the initial petition, during which either party may reconsider their decision and potentially withdraw the petition. If both parties still agree after the waiting period, they proceed to the second motion, after which the court examines the matter and may grant the decree of divorce. However, if one party withdraws their consent before the final decree and during the cooling-off period, the court cannot grant a divorce by mutual consent. 14. The mere filing of a petition with mutual consent does not authorize the court to pass a decree of divorce without the completion of the waiting period. However, if one party withdraws their consent before the final decree and during the cooling-off period, the court cannot grant a divorce by mutual consent. 14. The mere filing of a petition with mutual consent does not authorize the court to pass a decree of divorce without the completion of the waiting period. Moreover, if, after the matter is fixed for final disposal following the cooling-off period, one party remains absent and does not accord consent, the decree of divorce cannot be passed. It cannot be presumed that mutual consent exists merely because an application for divorce by mutual consent has been filed by both parties. Unless and until the spouses confirm their consent after the cooling-off period, no decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 can be granted. 15. In Smt. Sureshta Devi vs. Om Prakash , reported in (1991) 2 SCC 25 , the Supreme Court examined whether the consent given at the time of filing the petition continues to operate and bind the parties, disallowing withdrawal of consent. The Court held that the consent must continue from the date of filing the petition until the date the decree is passed. This requirement forms the basis of the cooling-off period of six months provided under the statute, allowing both parties to reconsider and either affirm or withdraw their consent to divorce. Similarly, affirming the above principle in Smruti Pahariya vs. Sanjay Pahariya (2009) 13 SCC 338 , the Supreme Court held that mutual consent must continue when the court is called upon to make an inquiry and pass the final decree, provided the petition is not withdrawn. It is settled law that mutual consent should persist until the final order is passed. There is no provision under Section 13B of the Act that permits the court to treat the absence of a party at the final hearing as consent to grant the decree. As observed by the Supreme Court in the judgment : “36. It is settled law that mutual consent should persist until the final order is passed. There is no provision under Section 13B of the Act that permits the court to treat the absence of a party at the final hearing as consent to grant the decree. As observed by the Supreme Court in the judgment : “36. Therefore, it was made clear in Sureshta Devis that under Section 13-B(2), the requirement is the "motion of both the parties" and interpreting the same, the learned Judges made it clear that there should be mutual consent when they move the court with a request to pass a decree of divorce and there should be consent also at the time when the court is called upon to make an enquiry, if the petition is not withdrawn and then pass the final decree. Interpreting the said section, it was held in Sureshta Devis that if the petition is not withdrawn in the meantime, the court, at the time of making the enquiry, does not have any jurisdiction to pass a decree, unless there is mutual consent. 42. We are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If a petition for divorce is not formally withdrawn and is kept pending, then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instanct case and especially in its fact situation, discussed above.” 43. In our view, it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13- B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumstances before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.” 16. The court while passing its decree under Section 13-B would be slow and circumstances before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.” 16. Turning to the facts of the present case, an application under Section 13B of the Hindu Marriage Act, 1955 was filed by the parties before the family court. However, after the filing of the application and expiry of the cooling-off period, the wife remained absent and did not appear before the court to press the application for mutual divorce. Consequently, the learned family court rightly dismissed the application, holding that the absence and non-accord of consent by the wife for the decree of divorce justified the dismissal. The trial court's decision in refusing to grant the decree of divorce cannot be interfered with in the instant case, particularly in light of the facts and legal principles discussed above. 17. The learned Family Court has passed the order according to Section 13 (B) of the Hindu Marriage Act, as the learned Family Court has rightly found that the appellant husband has failed to prove any evidence or receipt which may show that he has also paid the another 10 Lakhs rupees to the respondent wife, as such we do not find any illegality or irregularity in the order passed by the learned Family Court. 18. The appeal is sans merit and is liable to be and is hereby dismissed accordingly at the admission stage itself. However, liberty is reserved in favour of both the parties to file fresh application under Section 13 (1) (2) of the Hindu Marriage Act independently, if they so desire.