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all the pending cases would be withdrawn and that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dismissed as withdrawn.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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