Is Unilateral Withdrawal Of Consent From A Petition For Dissolution Of Marriage By Mutual Consent Allowed?

The Kerala High Court in the case of Benny v. Mini delved into the question as to whether it is permissible to withdraw one's consent in a petition filed for dissolution of marriage by mutual consent, filed pursuant to a compromise.

A Brief Background to the Case:

• The appellant (husband) and the respondent (wife) in the case were Christians and were married in September 2003.
• When the parties sought divorce, they were referred to mediation and they settled all their disputes arising out of the marriage by executing a memorandum of settlement.
• The parties agreed to transfer the custody of the children with the respondent and decided to withdraw all the pending cases pertaining to their marriage.
• The couple decided 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 The memorandum of settlement was recorded by   the   court and   all   the cases   were dismissed as withdrawn.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 Family Court referred the parties for counselling, and thereafter, conducted the inquiry where both the parties expressed their consent for divorce in unequivocal terms.
• However, the respondent filed an application seeking her consent stating that she was withdrawing her consent considering the welfare and future of the children. The appellant filed counter-affidavits to the applications.

The appellant had submitted that the respondent had perpetrated fraud not only on the appellant but also on the court. It was based on the memorandum of settlement executed by the parties in the mediation proceedings, all the litigations were withdrawn and the joint petition was filed.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 stopped from withdrawing her consent.

Analysis by the High Court:

a) Can parties to the suit withdraw a petition for dissolution of marriage?

On scrutiny of subsection (2) of Section 10A of the Divorce Act, it can be deciphered that the parties to a suit can withdraw the petition before the expiry of eighteen months from the date of its presentation. In Hitesh Bhatnagar v. Deepa Bhatnagar, the Supreme Court had 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.

The Kerala High Court in the case of Rajesh R. Nair v. Meera Babu had held that the right to withdraw consent was a qualified right and it was not for the Court to probe into the bona fides or reasonableness of withdrawal of consent. Once the consent was withdrawn, the only option available to the Court was to close the matter at that stage.

Similarly, the Bombay High Court in Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari while 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 by mutual consent, based on 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 (CPC).   

b) Can the consent given on the basis of a compromise to convert a petition for divorce to a petition by mutual consent be resiled?

The High Court in its judgment reiterated how the parties before the Family Court had settled as per the terms of the memorandum of settlement, under which the appellant withdrew the petition filed by him seeking a decree of divorce and entrusted the custody of the children to the respondent. After this, the parties filed a petition seeking a decree of divorce on mutual consent. After the statutory waiting period of six months to move the second motion, the appellant and the respondent filed their respective affidavits and the parties were referred for counselling on the same day and the Court conducted the inquiry.

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.  

The High Court, therefore, was of the view that the principles laid down by the High Court of Bombay in the case of Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari must be followed. The Court held that consent given based on a compromise to convert a petition for divorce to a petition by mutual consent cannot be resiled. In the case on hand, the only difference is the litigations were withdrawn, based on a compromise agreement, and a fresh petition for divorce by mutual consent was filed.

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.

c) Question of Reciprocal Promises under Section 51 of the Indian Contract Act:

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.

It is an established point of law that when the terms of an agreement are independent and self-working, the parties cannot refuse to perform their obligations. The Court went on stating that the flea bite defence that the respondent was withdrawing her consent for the welfare of the children was unfounded because she should have thought about the same at the time of executing the agreement.

Conclusion:

The High Court held that the respondent was precluded from withdrawing her consent by the principles of promissory estoppel. It was decided that once the parties agree to file a joint petition, under 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 had performed his part of the terms in the memorandum of agreement, was not permitted or tolerated by the Court as it would shatter the faith of the litigants in the justice delivery system and the mechanism of alternative dispute resolution.

Finally, it was established that the unilateral withdrawal of consent by the respondent was unsustainable in law and the  family  court made an error by allowing the applications filed by the respondent and by dismissing the original petition.