It is not legally permissible to unilaterally withdraw consent from a Joint Divorce Petition after other party has fulfilled their obligations: Kerala High Court

Mat.Appeal.No.1066 OF 2017 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY THE 05TH DAY OF FEBRUARY 2021 16TH MAGHA 1942 Mat.Appeal.No.1066 OF 2017 AGAINST THE JUDGMENT IN OP 669 2016 DATED 18 07 2017 OF FAMILY COURT IRINJALAKUDA S O.MALIYEKKAL MALAKKARAN VARGHESE AGED 43 PUTHENCHIRA VILLAGE AND DESOM CHALAKUDY TALUK REPRESENTED BY HIS MOTHER AND POWER OF ATTORNEY HOLDER SISILY AGED 73 YEARS W O.MALIYEKKAL MALAKKARAN VARGHESE D O.EDASSERY CHANGAN XAVIER AGED 38 EDASSERY CHANGAN HOUSE PAZHOOKKARA ANNALLUR P.O. THRISSUR 680307 NOW RESIDING AT C O.VARGHESE EDASSERY CHANGAN HOUSE VIJAYANAGAR KALAYAN R1 BY ADV. SRI.G.SREEKUMARand 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 Mat.Appeal.No.1066 OF 2017 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that the appellant would pay a compensation of Rs.10 00 000 to the respondent that all the pending cases would be withdrawn and that they would file a joint petition under Section 10A of the Divorce Act 1869 to dissolve their marriage by mutual consent. The memorandum of settlement was recorded by the court and all the cases were dismissed as withdrawn The parties filed O.P.669 2016.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 Mat.Appeal.No.1066 OF 2017 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 Mat.Appeal.No.1066 OF 2017 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 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 Mat.Appeal.No.1066 OF 2017 Court of Bombay in Prakash Alumal Kalandari v Jahnavi Prakash Kalandari and the decisions of the Hon ble Supreme Court in Anil Kumar Jain v. Maya Jain and Sureshta Devi v. Om Prakash to fortify his submissions. He prayed that the appeal be allowed and the marriage between the parties be 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 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 Mat.Appeal.No.1066 OF 2017 appeal be dismissed 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 whether such marriage was solemnized before or after the commencement of the Indian DivorceAct 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 sectionand 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 Mat.Appeal.No.1066 OF 2017 pass a decree declaring the marriage to be dissolved with effect from the date of 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 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 Mat.Appeal.No.1066 OF 2017 valid subsisting consent when the case is heard. 10. The Division Bench of this Court in Rajesh R.Nair v. Meera Babu 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 Procedureheld 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 Mat.Appeal.No.1066 OF 2017 the Hon ble Supreme Court and this Court 17. Taking a cue from the subtle distinction drawn in Prakash Alumal Kalandariwe 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 Mat.Appeal.No.1066 OF 2017 entrusted to the respondent who also received an amount of Rs.10 00 000 as compensation 19. Section 2of 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 2020has 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 Mat.Appeal.No.1066 OF 2017 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 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 Mat.Appeal.No.1066 OF 2017 24. Following the judgment in Prakash Alumal Kalandari 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. Mat.Appeal.No.1066 OF 2017 In the result the Mat.Appeal is allowed as follows The common order in 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 In the facts and circumstances of the case the parties shall suffer their respective

Summary: Until the other party has fulfilled his or her duties under the arrangement, a spouse’s unilateral withdrawal of consent from a joint petition filed for divorce is unsustainable in the statute. Since, the court held categorically that if the parties agree to file a joint petition pursuant to a compromise, they are estopped from withdrawing from the agreement. This remarkable judgment was passed by the Kerala High Court in BENNY V MINI [Matrimonial Appeal. No.1066 OF 2017] by Honourable Chief Justice A. Muhamed Mustaque and Honourable Justice C.S. Dias. In this appeal, the court deliberated on the issue of whether it is permissible to withdraw one’s consent in a petition filed for dissolution of marriage by mutual consent which was filed pursuant to a compromise. This appeal was a matrimonial appeal against an order of a Family Court that dismissed a joint petition after the wife withdrew her consent. The petition was filed by the husband seeking divorce. After a mediation session it was submitted that the petition would be filed jointly. The parties had decided mutually on all issues relating to custody and alimony and had also completed all formalities related to divorce. However, six weeks before the judgement was given, the wife withdrew her consent by filing an application and would not agree. The family court, therefore, dismissed the petition for divorce. While considering the appeal of the husband it was observed by the High Court that the husband had withdrawn his divorce petition, paid the amount of Rs 10 lakhs and entrusted the custody of the children to her as per the terms of the agreement. However, the wife still refuses to repay the alimony amount and instead argued that she had done so since the husband paid the alimony amount a few thousands less. HC in this regard relied on Section 2 (e) of the Indian Contract Act, 1872 and stated that “the wife 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. So, the wife has taken advantage of her own wrong and is attempting to unlawfully enrich herself which is not legal.” A reference was made to the judgment of the Bombay High Court in Prakash Alumal Kalandari v Jahnavi Prakash Kalandari which 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. The Court in this judgment expressed, “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” The rules of promissory estoppel prevented the wife from withdrawing her consent, according to the Court. Therefore, the Court stated, “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.”