Until the other party has fulfilled his or her duties under the arrangement, a spouse’s unilateral withdrawal of consent from a joint petition filed for divorce is unsustainable in the statute. Since, the court held categorically that if the parties agree to file a joint petition pursuant to a compromise, they are estopped from withdrawing from the agreement. This remarkable judgment was passed by the Kerala High Court in BENNY V MINI [Matrimonial Appeal. No.1066 OF 2017] by Honourable Chief Justice A. Muhamed Mustaque and Honourable Justice C.S. Dias.
In this appeal, the court deliberated on the issue of whether it is permissible to withdraw one’s consent in a petition filed for dissolution of marriage by mutual consent which was filed pursuant to a compromise.
This appeal was a matrimonial appeal against an order of a Family Court that dismissed a joint petition after the wife withdrew her consent. The petition was filed by the husband seeking divorce. After a mediation session it was submitted that the petition would be filed jointly. The parties had decided mutually on all issues relating to custody and alimony and had also completed all formalities related to divorce. However, six weeks before the judgement was given, the wife withdrew her consent by filing an application and would not agree. The family court, therefore, dismissed the petition for divorce.
While considering the appeal of the husband it was observed by the High Court that the husband had withdrawn his divorce petition, paid the amount of Rs 10 lakhs and entrusted the custody of the children to her as per the terms of the agreement. However, the wife still refuses to repay the alimony amount and instead argued that she had done so since the husband paid the alimony amount a few thousands less.
HC in this regard relied on Section 2 (e) of the Indian Contract Act, 1872 and stated that “the wife 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. So, the wife has taken advantage of her own wrong and is attempting to unlawfully enrich herself which is not legal.”
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 of the parties fulfilling the terms of the compromise, the other party cannot unilaterally withdraw consent. The Court in this judgment expressed, “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”
The rules of promissory estoppel prevented the wife from withdrawing her consent, according to the Court. Therefore, the Court stated, “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.”
Therefore, the High Court allowed the appeal filed by the husband and passed a decree of divorce.