Saturday, 13 February 2021

Whether one party can withdraw consent in divorce by mutual consent if another party has performed its obligation?

Following the judgment in Prakash Alumal

Kalandari (supra),we hold that once the parties

agree to file a joint petition, pursuant to an

agreement/compromise in pending proceedings, then

the parties are estopped from resiling from the

agreement. Therefore, the unilateral withdrawal of

consent by the respondent, especially after the

appellant has performed his part of the terms in the

memorandum of agreement, is only a sharp practice

which cannot be permitted or tolerated for a moment

as it would shatter the faith of the litigants in the

justice delivery system and make a mockery of

alternative dispute resolution mechanism.

25. We are of the definite opinion that the

unilateral withdrawal of consent by the respondent is

unsustainable in law and the Family Court erred by

allowing the applications filed by the respondent and

dismissing the original petition.

 KERALA HIGH COURT

Mat.Appeal.No.1066 OF 2017

Dated this the 5th day of February 2021

C.S.Dias,J.

Is it permissible to withdraw one's consent in a

petition filed for dissolution of marriage by mutual

consent, filed pursuant to a compromise, is the point

that emanates for consideration in the appeal?

2. The appellant (husband) and the respondent

(wife) are Christians. They were married on 10.9.2003.

Two children, Anliya and Blessin, were born in the

wedlock. The marriage ran into rough weather,

forcing the respondent to file O.P.No.1133/2010,

seeking a decree for return of money and gold

ornaments and M.C 349/2010, seeking an order for

maintenance, before the Family Court, Thrissur. The

appellant filed O.P. 433/2010 before the same court,

seeking a decree of divorce. The cases were later

transferred to the Family Court, Irinjalakuda. The


parties were referred to mediation and they settled all

the disputes arising out of the marriage by executing

a memorandum of settlement. The couple, inter alia,

agreed that custody of the children would be with the

respondent; that the appellant would pay a

compensation of Rs.10,00,000/- to the respondent; that

all the pending cases would be withdrawn and that

they would file a joint petition under Section 10A of

the Divorce Act, 1869, to dissolve their marriage by

mutual consent. The memorandum of settlement was

recorded by the court and all the cases were

dismissed as withdrawn. The parties filed

O.P.669/2016. As a condition precedent, on the date

of filing of the joint petition, the appellant paid an

amount of Rs.2,00,000/- to the respondent. The

balance amount of Rs.8,00,000/- was agreed to be

paid on the date the joint petition was posted for

inquiry after the statutory waiting period of six

months. On 20.2.2017, the date of second motion, the

appellant and the respondent filed their respective

proof affidavits in lieu of chief-examination. The

appellant paid the respondent the balance amount of

Rs.8,00,000/-, which was acknowledged by the

respondent. The Family Court referred the parties for

counselling, and thereafter, conducted the inquiry.

Both parties expressed their consent for divorce in

unequivocal terms. The case was posted for judgment

to 20.4.2017.

3. On 9.3.2017, the respondent filed I.A Nos.

573/2017 and 574/2017, seeking to withdraw the proof

affidavit and to withdraw her consent. She averred in

the affidavits in support of the applications that she

was withdrawing her consent considering the welfare

and future of the children. The appellant filed

counter affidavits to the applications. The applications

were taken up for consideration on 11.7.2017. The

parties were again referred for counselling. The

respondent stuck to her stand. Consequently, the

Family Court by the impugned common order allowed

the applications and dismissed the original petition.

4. Heard Sri.Firoz K.M, the learned counsel

appearing for the appellant and Sri.G.Sreekumar

(Chelur), the learned counsel appearing for the

respondent.

5. The learned counsel appearing for the

appellant submitted that the respondent has

perpetrated fraud not only on the appellant, but also

on the court. It was on the basis of the memorandum

of settlement executed by the parties in the mediation

proceedings, all the litigations were withdrawn and

the joint petition was filed. The appellant had paid

the agreed compensation, which was accepted by the

respondent. By filing the compromise and accepting

the compensation, the respondent was estopped from

withdrawing her consent. The Family Court ought to

have rejected the applications and allowed the

original petition. He relied on the decision of the High


Court of Bombay in Prakash Alumal Kalandari v.

Jahnavi Prakash Kalandari [2011 KHC 2559] and

the decisions of the Hon'ble Supreme Court in Anil

Kumar Jain v. Maya Jain [2009 KHC 5184] and

Sureshta Devi v. Om Prakash [1991 KHC 146] to

fortify his submissions. He prayed that the appeal be

allowed and the marriage between the parties be

dissolved..

6. The learned counsel for the respondent

argued that the law provides for either party to a joint

petition to withdraw his/her consent at any time

before the passing of the decree. He relied on the

decision of this Court in Rajesh R.Nair v. Meera

Babu [2014 (1) KHC 83]. He also contended that

apart from the welfare of the children, the respondent

had later found, on counting the money given by the

appellant, a few thousand rupees short than the

agreed amount. It was in the said situation that the

respondent withdrew her consent. He prayed the

appeal be dismissed.

7. It is apposite to extract Section 10Aof the

Divorce Act, 1869 which reads as follows:

“10A. Dissolution of marriage by mutual consent:-

(1)Subject to the provisions of this Act and

the rules made thereunder, a petition for

dissolution of marriage may be presented to the

District Court by both the parties to a marriage

together, whether such marriage was

solemnized before or after the commencement

of the Indian Divorce (Amendment) Act, 2001

on the ground that they have been living

separately for a period of two years or more,

that they have not been able to live together

and 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 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 by both the

parties in the meantime, the Court shall, on

being satisfied, after hearing the parties

and 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 declaring the marriage to be

dissolved with effect from the date of

decree.”

8. On a close scrutiny of sub-section(2) of

Section 10A of the Divorce Act, it can be deciphered

that either of the parties can withdraw the petition

before the expiry of 18 months from the date of its

presentation. However, the Court on being satisfied,

after hearing the parties and making such inquiry

and that the averments in the petition to be true,

pass a decree declaring the marriage to be dissolved

from the date of decree.

9. In Hitesh Bhatnagar v. Deepa Bhatnagar

[2011 KHC 4390], the Hon'ble Supreme Court held

that mutual consent to the divorce is a sine quo non

for passing a decree for divorce, which should

continue till the passing of the decree and is a positive

requirement for the court to pass a decree of divorce.

The consent must continue to decree nisi and must be

valid subsisting consent when the case is heard.

10. The Division Bench of this Court in Rajesh

R.Nair v. Meera Babu (supra) has held that the right

to withdraw consent is a qualified right and it is not

for the Court to probe into the bona fides or

reasonableness of withdrawal of consent. Once the

consent is withdrawn, the only option available to the

Court is to close the matter at that stage.

11. In a case of almost identical nature, the High

Court of Bombay in Prakash Alumal Kalandari

(supra) interpreting an analogous provision under

Section 13B of the Hindu Marriage Act,1955, held that

when the parties agree to convert a pending petition

for divorce to a petition for divorce by mutual

consent, on the basis of a compromise, and on one of

the parties fulfilling the terms of the compromise, the

other party cannot unilaterally withdraw consent in

view of Order XXIII of the Code of Civil Procedure ( in

short 'Code').


12. Now coming back to the facts of the present

case. It is undisputed that the litigations filed by the

parties before the Family Court were settled as per the

terms of the memorandum of settlement dated

16.8.2016, pursuant to which the appellant withdrew

the petition filed by him seeking a decree of divorce

and entrusted the custody of the children to the

respondent. He also paid an amount of Rs.2,00,000/-

as a condition precedent to file the joint petition.

Thereafter, the parties filed O.P No.669/2016 on

18.8.2016, seeking a decree of divorce on mutual

consent. After the statutory waiting period of six

months to move the second motion, on 20.2.2017,

the appellant and the respondent filed their respective

affidavits in lieu of their chief-examination and the

respondent accepted Rs.8,00,000/- towards the

balance compensation. The parties were referred for

counselling on the same day and the Court conducted

the inquiry.


13. In the proceedings in the second motion, the

respondent did not state either before the Court or

before the Counsellor that she was withdrawing her

consent or that she was concerned about the welfare

of the children.

14. The Family Court, on being satisfied, that the

parties had expressed their free consent for

divorce,reserved the case for judgment to 20.4.2017.

It was on the proposed date of pronouncement of

judgment that the respondent moved the applications

seeking withdrawal of her proof affidavit and consent.

15. The Family Court following the judgment in

Hitesh Bhatnagar v. Deepa Bhatnagar [AIR 2011

SC 1637] held that the respondent was free to

withdraw her consent at any time before the passing of

the decree. Accordingly, the applications were allowed

and the original petition was dismissed.

16. We have re-appreciated the pleadings,

materials on record and the afore-cited decisions of


the Hon'ble Supreme Court and this Court.

17. Taking a cue from the subtle distinction

drawn in Prakash Alumal Kalandari (supra), we are

of the view that the same principles laid down in the

decisions are applicable to the facts of this case. The

High Court of Bombay held that consent given on the

basis of a compromise to convert a petition for divorce

to a petition for divorce by mutual consent cannot be

resiled. In the case on hand, the only difference is the

litigations were withdrawn, on the basis of a

compromise agreement, and a fresh petition for

divorce by mutual consent was filed.

18. The appellant and the respondent executed a

memorandum of settlement agreeing that all disputes

between them arising out of the marriage were

harmoniously settled. On the strength of reciprocal

promises, both parties withdrew the pending

litigations and the custody of the children was


entrusted to the respondent, who also received an

amount of Rs.10,00,000/- as compensation.

19. Section 2 (e) of the Indian Contract Act, 1872

states that every promise and every set of promises,

forming the consideration for each other, is an

agreement. There were reciprocal promises agreed

by the parties, falling within the ambit of Section 51 of

the Indian Contract Act, 1872, which was duly

performed by the appellant. The respondent on

getting the custody of the children and receiving the

compensation was obliged to perform her part of the

agreement, i.e, to give her consent for dissolution of

the marriage.

20. This Court in Gopakumar v. Sunithakumar

[2020 (3)KHC 147] has held that when the terms of an

agreement are independent and self working, the

parties cannot refuse to perform their obligations.

21. We had pin-pointedly asked the learned

counsel appearing for the respondent whether the

respondent was willing to return the compensation

amount received by her from the appellant. The

answer was an empathetic “no”. We are constrained

to hold that the respondent has taken advantage of

her own wrong and is attempting to unlawfully enrich

herself.

22. The submission of the learned counsel before

this Court that the respondent found a few thousand

rupees short in the compensation paid, is an hollow

and untenable plea, which was never raised before the

Court of first instance. Moreover, the flea bite

defence that the respondent was withdrawing her

consent for the welfare of the children is unfounded

because she should have thought about the same at

the time of executing the agreement. Further, the

custody of the children was entrusted to her.

23. In the above factual and legal background,

we hold that the respondent was precluded from

withdrawing her consent by the principles of

promissory estoppel.

24. Following the judgment in Prakash Alumal

Kalandari (supra),we hold that once the parties

agree to file a joint petition, pursuant to an

agreement/compromise in pending proceedings, then

the parties are estopped from resiling from the

agreement. Therefore, the unilateral withdrawal of

consent by the respondent, especially after the

appellant has performed his part of the terms in the

memorandum of agreement, is only a sharp practice

which cannot be permitted or tolerated for a moment

as it would shatter the faith of the litigants in the

justice delivery system and make a mockery of

alternative dispute resolution mechanism.

25. We are of the definite opinion that the

unilateral withdrawal of consent by the respondent is

unsustainable in law and the Family Court erred by

allowing the applications filed by the respondent and

dismissing the original petition.


In the result, the Mat.Appeal is allowed as follows:

(i) The common order in I.A

Nos.573/2017 and 574/2017 and the judgment

in O.P. No.669/2016 are set aside.

(ii). We allow O.P. 669/2016 by passing a

decree of divorce dissolving the marriage

between the appellant and the respondent

solemnised on 10.9.2003.

(iii) In the facts and circumstances of the

case, the parties shall suffer their respective

costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS


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