One party cannot withdraw consent for divorce: HC
The Bombay High Court has held that “before the decree (of divorce by mutual consent) is passed, one party cannot be allowed to unilaterally withdraw the consent if the other party has already acted upon the consent terms either wholly or in part to his or her detriment.”
A Division Bench of Justice A M Khanwilkar and Justice Mridula Bhatkar observed that the court can allow one of the litigating spouses to backtrack from the agreements made for a divorce by mutual consent only if there is a reason good enough for it and the rights of the other party are not prejudiced.
The court was hearing an appeal filed by a Pune-based couple that had been separated since 2006. They were married in August 1993 and have two children. Initially, the petition for divorce was filed by the wife on the grounds of cruelty. There were other complaints filed by her under Section 498-A (harassment) of the IPC.
On October 6, 2008, however, the husband and wife agreed for a divorce by mutual consent and the wife withdrew the criminal complaints lodged against the husband. She also relinquished her right for alimony and agreed to transfer the property in her name to that of her husband. While the custody of both the children was given to her she had agreed to let him have access to them on weekends and during school vacations.
However, at a later stage the husband refused to seek a divorce by mutual consent contending that the consent terms were not irrevocable. He said his wife had faulted on granting him access to their children. However, the wife informed the court that he failed to meet the children as he was facing criminal charges in some other case and was in jail on the day he was supposed to meet them. On March 31, 2009, the family court in Pune granted the couple a divorce by mutual consent.
Agreeing with the family court’s order, the judges held that the wife had “performed her obligations and committed herself to waive the claim of maintenance for herself and also streedhan including to withdraw civil and criminal actions initiated by her against the appellant (husband). Even for this reason, the appellant cannot be permitted to withdraw his consent as it would result in bestowing premium on the appellant in spite of his unjust and inequitable request to allow him to unilaterally withdraw the consent.”