JAIPUR: If an estranged wife, after filing for divorce through mutual consent and took money under an agreement, takes a U-turn and subsequently withdraws consent for divorce and force the husband to pay more money, then such a step itself is a valid ground for divorce and such U-turn cannot be allowed to be used to harass the husband, the Rajasthan High Court has held.
The order came on an appeal filed by one Anil Khatwani against the order of distirct judge, Bhilwara, whereby the latter had dismissed the joint petition moved by Anil and his wife Nishtha under Section 13B of Hindu Marriage Act for granting divorce by mutual consent based on a compromise.
As per the compromise arrived between the parties in January 2007, Anil agreed to pay a sum of Rs 5 lakh to Nishtha to get their marriage dissolved by way of mutual consent and also to get an FIR filed under Sections 498A and 406 against him and his relatives quashed.
The agreement was acted upon, money was paid and based on it, a single judge of the high court quashed the FIR filed against the husband. However, later when the district court was about to grant the divorce, the wife withdrew the consent alleging that she has not been paid any money for alimony and that the agreement was arrived under force. On her application, the district judge, Bhilwara dismissed their joint application for divorce.
The husband then appealed in the high court. His counsel, Sachin Acharya contended: "The mischievous and unilateral withdrawal of consent by wife at a belated stage, more so when she has accepted the money and never made any effort to reconcile in the past 7 years, cannot be said to be a genuine act."
Upholding the contentions of the counsel for petitioner, Justice Dr Vineet Kothari in a 81-page judgment said: "In such cases in the present day society, the 'consent' is mischievously withheld or delayed to extort more amount of permanent alimony than the one initially agreed upon and received by the estranged wife from the forlorn husband. An application to formally withdraw the petition under Section 13B moved unilaterally without real intent to join back & restore the matrimonial home can be used as a tool for harassment of the husband to extort more money from him, knowing well that at that stage pushing him to the channel of regular divorce petition would not only be a long drawn process but the same would not allow him any opportunity to remarry with the advancing age if he still wants it & settle in life again."
Reprimanding the conduct of the wife, the court said: "What has been stated by the wife in this case is not genuine. She has no intention to live together and she never made any effort to reconcile nor refunded the money taken. Her statements are nothing but simply tissues of lies and simply an afterthought."
The court held that if consent is sought to be withdrawn on some frivolous grounds or just to open a front to extort more money, then the withdrawal of such consent has to be examined in the background of the reasons given for such withdrawal and the courts below can still pass a decree of divorce even if the wife has moved an application to annul the divorce petition filed jointly with her estranged husband.1
Setting aside the order of the district judge, the high court held that the consent of the wife to not to live together was continuing and granted decree of divorce to the husband.
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