Wife Can't Unilaterally Withdraw Consent For Divorce After Settlement Was Arrived At During Mediation: Kerala HC Upholds Dissolution Of Marriage

Dismissing the appeal filed by the appellant, the Court stated that, 

“Several litigations are pending between the parties before various courts including petition for divorce, custody of child and patrimony. All those cases were settled in mediation and the parties agreed to dissolve their marriage by mutual consent. Accordingly, the parties filed a joint petition for divorce, received part payment, disposed of the pending cases and thereafter at the final stage when the case was taken up for evidence to record the consent of the parties, the appellant withdrew her consent.”

Background

The appellant herein was the wife of the respondent The parties who got married in 2014 have been residing separately since 2018 and have several litigations between them before various courts. All disputes between the parties were resolved by entering into a mediation agreement incorporating terms of settlement in 2022. As per the terms of the settlement- the respondent agreed to pay rupees sixteen lakhs to the appellant, the permanent custody of child was given to the appellant and the parties agreed to dissolve their marriage on mutual consent.

They filed a mutual petition for divorce, but the appellant withdrew her consent for divorce. The appellant contended that the mediation agreement was executed without her free will and consent and that she was not willing to dissolve her marriage with the respondent. The respondent contended that he already made part payment of the settlement amount as per the mediation agreement. Relying upon Benny v. Mini (2021), the Family Court passed a decree dissolving the marriage.

Aggrieved by this, the appellant has approached the High Court challenging the judgment passed by the Family Court dissolving her marriage with the respondent.

Court Observations

The appellant relied upon Jayaraj R. v. Kaya G. Nair (2023), to contend that parties could withdraw their consent to divorce any time before the decree was passed.

The respondent submitted that the appellant was not justified in withdrawing her consent after the parties mutually entered into a mediation agreement incorporating terms of settlement.

The Court stated that the Family Court granted divorce by relying upon the judgements in Benny (supra) and Prakash (supra). It said: “…Family Court held that unilateral withdrawal by one party after the other party has performed his part of the terms in the memorandum of agreement is 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 the alternative dispute resolution mechanism.”

Considering the facts of the case, the Court stated that the parties fell within the ambit of the judgments in Benny (supra) and Prakash (supra). It thus stated that the Family Court was justified in dissolving the marriage despite the withdrawal of consent by the appellant.

Accordingly, the Court dismissed the appeal.

Counsel for Appellant: Advocates Bobby Rapheal C, E C Poulose

Counsel for Respondent: Advocates Sheeba Mariam. J., Arundhathy K. Alias

Citation: 2024 LiveLaw (Ker) 181

Case number: MAT.APPEAL NO. 894 OF 2023

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