JUDGMENT Hon'ble V.K. Bist, J. Present appeal is directed against the judgment and order dated 16.08.2017 passed by Judge Family Court Haridwar, whereby the learned Judge Family Court, Haridwar has dismissed the joint petition filed by the parties, under Section 13-B of the Hindu Marriage Act, 1955 (herein after referred as the Act) seeking divorce by mutual consent. 2. Factual matrix of the case is that appellant and respondent who are husband and wife they filed a joint petition under Section 13-B of the Act, seeking decree of divorce by mutual consent, on the ground that they are living separately more than a year and there are no chance of continuance of their marriage life. 3. After filing the divorce petition by mutual consent the respondent wife made an application that her consent had been taken under duress. The learned Judge Family Court by impugned judgment and order dated 16.08.2017 was pleased to dismiss the petition on withdrawal of consent by respondent. 4. During the pendency of appeal the parties were directed to appear before the Court for amicable settlement/mediation. The matter was listed on 13.04.2018, the parties agreed to live together this Court passed the following order: “In sequel to the efforts made by this Court, learned Advocates for both sides and with the persistent intervention of Mr. Anand Kamal Mishra, the parties have decided to live together initially for a period of two months with certain reservations. There were bound to be certain reservations. The parties were livingly separately for a considerable time. However, we hope and trust that the parties henceforth would live happily and merrily. 2. Certain apprehensions and reservations have been made by both the parties. However, we are of the considered opinion that since the parties are turning a new life, they would forget the past. But still, in order to allay the fears of both the parties, we impress upon them to give mutual respect to each other as well as to their parents. 3. Besides being Judges, we, as elderly persons, and request Sudha Pandey-respondent to make all out efforts to save the marriage by giving respect to the husband (appellant) and his parents which they richly deserve. 4. We direct the respondent-Sudha Pandey not to use any intemperate language which may hurt the feelings of husband and his elderly parents. 5. 3. Besides being Judges, we, as elderly persons, and request Sudha Pandey-respondent to make all out efforts to save the marriage by giving respect to the husband (appellant) and his parents which they richly deserve. 4. We direct the respondent-Sudha Pandey not to use any intemperate language which may hurt the feelings of husband and his elderly parents. 5. We ask both the parties to live together with positive state of mind. We direct the respondent not to hurt the feelings of the husband and his parents. We hope and trust, henceforth, that the couple would live together happily and would contribute to the society being educated persons. 6. Having said so, we have put heavy burden on the respondent but we expect the same from the husband. The appellant would show due respect towards his wife to save the marriage. The parties are advised to go together to Bombay. 7. In view of this happy development, the matter is adjourned for two months. The parties are directed to remain in-person with positive mind on the next date fixed. 8. We sincerely place on record our appreciation for the learned Advocates appearing for the parties who have made an extra-ordinary effort to save the marriage. 9. We are thankful of the timely intervention of Mr. Anand Kamal Mishra to save the marriage. 10. List this case on 25.06.2018." 5. The appeal was listed on 25.06.2018 the counsel for the parties informed this Court that the appellant and respondent are living together and requested that the matter listed on 10..09.2018, so the parties may consider whether they can continue their married life or not? 6. Pursuant to the order dated 25.06.2018 the appeal is listed. Mr. Bhuwnesh Joshi, learned counsel for the appellant seeks adjournment. Per contra Mr. Bhupesh Kandpal, learned counsel for the respondent made a statement at bar, that now the appellant as well as respondent are living together happily, therefore, the appeal be dismissed as infructuous. 7. Learned counsel for the appellant would submit that the appeal has not been rendered infructuous, and he has the instruction to argue the appeal on merit. He would further submit that the appeal be decided on merit. Hence, this appeal is being decided on merit. 8. 7. Learned counsel for the appellant would submit that the appeal has not been rendered infructuous, and he has the instruction to argue the appeal on merit. He would further submit that the appeal be decided on merit. Hence, this appeal is being decided on merit. 8. The petition under Section 13-B of the Act, had been filed by the appellant and respondent of dissolve their marriage by mutual consent, on the ground that they are living separately for a considerable period of more than one year and it is not feasible for them to live together husband and wife, their marriage be dissolved by decree of divorce by mutual consent. But, subsequently respondent wife withdrew the consent. 9. Admittedly, petition seeking decree of divorce by mutual consent under Section 13-B of the Act was filed by the parties. But the respondent withdrew the consent, saying that the consent was not free consent rather it was under duress, thus she is withdrawing the consent obtained under duress and without her free will. It was further prayed that since the respondent has withdrawn her consent, the divorce petition be dismissed. 10. Learned counsel for the appellant would submit that since the divorce petition by mutual consent of the parties was filed, thus the respondent had no authority to withdraw her consent. The learned Judge Family Court instead of dismissing the petition for divorce, ought to have pass the decree of divorce. He would further submit that since the consent was given by the respondent at the time of filing the divorce petition by mutual consent, the respondent had no authority to withdraw the consent. 11. To decide the controversy in this case, it would be appropriate to extract the provisions of Section 13-B of the Act, which are being reproduced herein 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, 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 solemnised 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.]" 12. Section 13-B of the Act, provides that after filing the divorce petition by mutual consent, the Court shall fix a date, not less than a period of six month. This period is called cooling period. In the event the parties changed their minds during the period of six months, the decree of divorce will not be passed. After the initial motion and the presentation of the divorce petition under Section 13-B of Hindu Marriage Act, divorce by mutual consent, the parties are required to wait for a period of six months, which is called a cooling period before the second motion. Even after six months, the parties think that it is not possible for them to live together, the Court, after making such an enquiry, as it may consider just, proper and fit, grant a decree of divorce declaring the marriage to be dissolved by mutual consent with effect from the date of decree. The Parliament in its wisdom stipulated a cooling period of six months from the date of filing of a petition by mutual consent till such divorce is actually granted. The intention of the Legislature is that it would save the institution of marriage. A party to the marriage and divorce petition by mutual consent can withdraw the consent, before the decree of divorce is passed on such an enquiry as prescribed under Section 13-B of the Act. After expiry of cooling period of six months, in spite of joint petition is filed, it is the duty of this Court to conduct such an enquiry which is necessary to find out the truthfulness of the averments of divorce petition to satisfy itself in passing the decree of divorce by mutual consent mechanically. After expiry of cooling period of six months, in spite of joint petition is filed, it is the duty of this Court to conduct such an enquiry which is necessary to find out the truthfulness of the averments of divorce petition to satisfy itself in passing the decree of divorce by mutual consent mechanically. Even after the second motion, the Court is not supposed to pass the decree of divorce by mutual consent. The Court has to make such an enquiry as it thinks fit that the marriage has been solemnized and with the averments in the petition are true, passed a decree of divorce. The Court is not supposed to pass a decree of divorce by mutual consent, without there being recorded its satisfaction after an enquiry as needed in this regard. 13. A plaintiff has every right to withdraw his/her suit or abandon of the part the claim as provided in Rule 1 of Order 23 of the Code of Civil Procedure. Rule 1 of Order 23 of the Code of Civil Procedure provides withdrawal of suit or abandonment of part of claim. Rule 1 of Order 23 of the Code of Civil Procedure is extracted herein under: [1. Withdrawal of suit or abandonment of part of claim— (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons. (3) Where the Court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim. (4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.] [1-A. When transposition of defendants as plaintiffs may be permitted— Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.] 14. It would be relevant to mention here that besides the provisions contained in Rule 1 of Order 23 of the Code of Civil Procedure. The consent and free consent have been defined in Sections 13 & 14 of Contract Act, 1872, which are reproduced herein under: “13. “Consent" defined.—Two or more persons are said to consent when they agree upon the same thing in the same sense. 14. The consent and free consent have been defined in Sections 13 & 14 of Contract Act, 1872, which are reproduced herein under: “13. “Consent" defined.—Two or more persons are said to consent when they agree upon the same thing in the same sense. 14. “Free consent" defined.—Consent is said to be free when it is not caused by— (1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake." 15. The person who institutes a suit, has every right to withdraw the same. In the present case, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 28.05.2016. However, before the stage of second motion, the respondent withdrew her consent by filing an application dated 06.01.2017. The withdrawal of consent was after a period of eighteen months of filing the petition. The respondent submits that she was taken by surprise when she was asked by the appellant for divorce, and had given the initial consent under mental stress and duress. She states that she never wanted divorce and is even now willing to live with the appellant as his wife. Consent should always be a free consent, which is not found in the present case. 16. In our view, even if withdrawal application is filed after 18 months, the Court is not bound to grant divorce decree by mutual consent. The Court has to proceed with about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence and whether marriage can be saved. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the Court is satisfied that the consent of the parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce. 17. In the present case, admittedly, the consent had been withdrawn by the respondent. A careful analysis of the provisions contained herein above, this Court is of the opinion that if a party to the divorce petition filed by mutual consent withdraw its consent, the Court cannot proceed to pass the decree of divorce by mutual consent. Consent will continue till it is withdrawn. Since the consent was withdrawn by the respondent, thus in view of this Court, the learned Judge Family Court has committed no illegality in dismissing the petition by impugned order dated 16.08.2017. Moreover, at present, the parties are living together happily. 18. The appeal is liable to be dismissed. The same is dismissed. 19. There is no order as to costs.