Consent withdrawal after settlement unlawful
Unilateral withdrawal of consent by the respondent, especially after the appellant has performed his part of the terms in the memorandum of agreement cannot be permitted or tolerated even for a moment, says the High Court of Kerala (HC) in a Matrimonial Appeal relating to Mutual Consent Divorce
Such a unilateral withdrawal of consent by the respondent would shatter the faith of the litigants in the justice delivery system and make alternative dispute resolution mechanism a mockery. Such a practice is unsustainable in law.
The facts of the case
The parties in a joint petition in mutual consent divorce, referred to mediation, executed a memorandum of settlement after agreeing to settle all the disputes arising out of the marriage in the following manner.
They agreed that custody of the children would be with the respondent; that the appellant would pay a compensation of Rs.10,00,000/- to the respondent; that all the pending cases would be withdrawn and that they would file a joint petition under Section 10A of the Divorce Act, 1869, to dissolve their marriage by mutual consent.
The court record the memorandum of settlement and dismissed all the cases as withdrawn. The parties filed a divorce OP and on the date of filing of the joint petition, the appellant paid an amount of Rs.2,00,000/- to the respondent as a condition precedent. 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.
Later, on the date of second motion, the parties filed their respective proof affidavits in lieu of chief-examination. The appellant paid the respondent the balance amount of Rs.8,00,000/-, which was acknowledged by the respondent. The Family Court referred the parties for counselling, and thereafter, conducted the inquiry.
Both parties expressed their consent for divorce in unequivocal terms. Later, the respondent filed interlocutory applications seeking to withdraw the proof affidavit and to withdraw her consent. She declared in the affidavits in support of the said applications that she was withdrawing her consent considering the welfare and future of the children. The appellant filed counter affidavits to the applications.
The applications were taken up for consideration. The parties were again referred for counselling. The respondent stuck to her stand. Consequently, the Family Court by the impugned common order allowed the applications and dismissed the original petition.
The case reached HC as matrimonial appeal
A Matrimonial Appeal was filed by the husband. In the appeal the appellant pleaded that the respondent has perpetrated fraud not only on the appellant, but also on the court.
The appellant pointed out that it was on the basis of 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 estopped from withdrawing her consent. The Family Court ought to have rejected the applications and allowed the original petition of divorce.
Cases relied on by the appellant
The appellant relied on the decision of the High Court of Bombay in Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari [2011 KHC 2559] and the decisions of the Hon’ble Supreme Court in Anil Kumar Jain v. Maya Jain [2009 KHC 5184] and Sureshta Devi v. Om Prakash [1991 KHC 146] to strengthen his submissions.
He prayed that the appeal be allowed and the marriage between the parties be dissolved.
In Prakash Alumal Kalandari case the High Court of Bombay, 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 for divorce by mutual consent, on the basis of 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).
The 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.
In Gopakumar v. Sunithakumar [2020 (3) KHC 147] has held that when the terms of an agreement are independent and self-working, the parties cannot refuse to perform their obligations.
Judgement of the appellate court
In the judgment, the High court of Kerala held that the respondent was precluded from withdrawing her consent by the principles of promissory estoppel.
The HC added 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 HC allowed the divorce petition as the appellant pleaded for after quashing the Family Court’s impugned order.
The HC pointed out that 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 alternative dispute resolution mechanism a mockery.
Such a unilateral withdrawal of consent by the respondent is unsustainable in law.
Additional reading
- Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari [2011 KHC 2559]
- Anil Kumar Jain v. Maya Jain [2009 KHC 5184]
- Sureshta Devi v. Om Prakash [1991 KHC 146]
- Gopakumar v. Sunithakumar [2020 (3) KHC 147]
