Can a Party Withdraw Consent From Mutual Divorce Petition, If Other Party has Acted upon?

Recently, Kerala High Court held that a spouse’s unilateral withdrawal of consent from the mutual petition filed for divorce, after the other party has performed their obligations under the agreement, is unsustainable in law.

The Court further stated that such a practice couldn’t be permitted for a moment as it would shatter the faith of litigants in the justice system and make a mockery dispute resolution mechanism. Once the parties agree to file a mutual petition according to a compromise in pending proceedings, the Court further held that the parties are estopped from withdrawing the agreement.

This observation was made when the Bench considered a matrimonial appeal against a family court order that dismissed a mutual petition after the wife withdrew consent.

In the instant case, the mutual petition was filed while the husband’s divorce petition was pending. During the mediation, the couple agreed to file a mutual petition for divorce u/s 10A of Indian Divorce Act. The conditions were that the husband would pay 10 lakh to the wife and give custody of the kids to her. As per the agreement, the husband paid 2 lakh to the wife and the rest he would pay when the mutual petition is posted for inquiry after the statutory waiting period of six months.

On the said date, the husband paid the balance amount, and the parties expressed their consent. However, after six weeks, the wife withdrew her consent. As the wife withdrew her consent, the family court dismissed the petition.

In this regard, the Court relied on Hitesh Bhatnagar vs Deepa Bhatnagar where the Court held that a party could withdraw the consent anytime before passing the judgment.

When the Bench asked the wife if she would return the money paid to her, she replied negatively. The wife submitted that she withdrew the consent because the amount paid to her was a few thousand rupee short.

The Bench opined that the wife was taken advantage of her wrong and was trying to enrich herself unlawfully.

In the instant case, the Hon’ble Court held that unilateral withdrawal of consent by the wife was unsustainable in law and the Family Court erred by allowing the applications filed by the wife.

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