Sunday, 15 July 2018

Whether one party to divorce by mutual consent can withdraw his consent for divorce?



Adverting to the above principles of law it cannot be said that there was any legal bar for the petitioner to withdraw his consent as recorded in the pursis when the pursis referred that "both the parties have agreed to take divorce by consent." In any event if at all the parties were to maintain their consent for divorce as stated in the pursis, then the requirement of law was that the parties, would present an appropriate application by complying necessary requirements provided by Section 28 of the Special Marriage Act and seek a decree of divorce by mutual consent. However, before such an application/petition could be presented, the petitioner intended to withdraw his consent by the application on which the impugned order is passed. In my opinion, considering the aforesaid clear position in law there was no legal impediment for the petitioner to withdraw his consent as recorded in the pursis. The petitioner having withdrawn his consent, the necessary consequence would be that the family Court would be required to proceed and adjudicate the petition on the issue of divorce on all the grounds which are available to the parties. Thus, considering the requirement of law it was not proper and appropriate for the family Court to reject the application of the petitioner to withdraw the joint pursis dated 25 July 2015. The impugned order is manifestly illegal.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 12862 and 12863 of 2017

Decided On: 22.01.2018

 Vishal Nitinkumar Kondhia Vs. Jahnvi Vishal Kondhia

Hon'ble Judges/Coram:
G.S. Kulkarni, J.

Citation: 2018(3) MHLJ 823
Read full judgment here: Click here
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