Unilateral Withdrawal Of Consent From Joint Divorce Petition, After Other Party Has Performed Obligations Under Agreement, Cannot Be Permitted : Kerala High Court

The Kerala High Court has delivered a notable judgment holding that unilateral withdrawal of consent by a spouse from a joint petition filed for divorce, after the other party has performed his/her obligations under the agreement, is unsustainable in law.

The Court termed it 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".

Once the parties agree to file a joint petition pursuant to an agreement or a compromise in pending proceedings, then the parties are estopped from withdrawing from the agreement, the court held categorically.

"...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", observed a division bench comprising Justices A M Muhammed Mustaque and CS Dias.

The division bench was considering the case Benny v Mini which was a matrimonial appeal against an order of a Family Court dismissing a joint petition after the wife withdrew her consent.

The joint petition was filed during the pendency of a petition filed by the husband seeking divorce. At a mediation talk held during the pendency of the husband's divorce petition, the couple agreed to file a joint petition for divorce under Section 10A of the Indian Divorce Act. As per the agreement, the husband had to withdraw his divorce petition, pay an amount of Rupees 10 lakh to the wife, and also entrust the custody of their two children with her. As a condition precedent, on the date of filing of the joint petition, the husband paid an amount of Rs.2,00,000/- to the wife. 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 the date of the posting after the waiting period, the husband paid the balance amount of Rs eight lakhs to the wife. The parties filed affidavits expressing consent. Even after the Court ordered counselling, the parties stuck to their stand, and reiterated consent for divorce. Accordingly, the Family Court reserved judgment on the case.

About six weeks ahead of the date of pronouncement of judgment, the wife filed a fresh application stating that she was withdrawing her consent from the joint petition. Following this, the Family Court sent the parties to another round of counselling. The wife affirmed the withdrawal of the consent. On that basis, the Family Court dismissed the joint petition.

The Family Court relied on the judgment of the Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar [AIR 2011SC 1637] which held that the respondent was free to withdraw her consent at any time before the passing of the decree.

While considering the appeal of the husband, the division bench of the High Court took exception to the conduct of the wife in withdrawing from the joint petition after her 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.

When the High Court asked the counsel of the wife if she will return the money given by her husband, the answer was in the negative. The wife's argument before the High Court was that she withdrew her consent after she found that the money given by her husband was a few thousands short of the agreed amount. The High Court discarded this argument as "untenable" since it was never raised before the Family Court.

The judgment authored by Justice Dias observed :

"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".

The Court said that it was constrained to observed that the wife "has taken advantage of her own wrong and is attempting to unlawfully enrich herself".

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 o fthe parties fulfilling the terms of the compromise, the other party cannot unilaterally withdraw consent.

The Court held that the wife was precluded from withdrawing her consent by the principles of promissory estoppel.

"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", the judgment held.

Allowing the appeal, the High Court passed a decree of divorce.

Click here to read/download the judgment