Unilateral Withdrawal of Consent for Mutual Consent Divorce : Pankaj Kumar & Co. | Law Firm
Unilateral Withdrawal of Consent for Mutual Consent Divorce : Pankaj Kumar & Co. | Law Firm
Organisation February 13, 2021 95
The question ‘Whether a spouse can withdraw his/her consent for mutual consent divorce’ has been widely debated and different courts of law have given different interpretation and rulings from time to time.
Recent Judgment of Hon’ble Kerala High Court
Recently on 5th February, 2021 in Mat Appear No. 1066 of 2017, Hon’ble Kerala High Court has delivered a notable judgment holding that unilateral withdrawal of consent by a spouse from a joint petition filed for divorce, after the other party has performed his/her obligations under the agreement, is unsustainable in law and thus, the Hon’ble Court granted divorce to husband even though the wife had withdrawn her consent before the Family Court and on that ground the family court had dismissed the mutual consent divorce petition.
The reasoning given by the High Court for not allowing the wife to withdraw her consent and grating divorce was that once the parties agree to file a joint petition pursuant to an agreement or a compromise in pending proceedings, then the parties are estopped from withdrawing from the agreement. The court held, the 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".
Notably, the Hon’ble High Court also considered the decision of Hon’ble Supreme Court of India in case titled as ‘Hitesh Bhatnagar v. Deepa Bhatnagar [AIR 2011SC 1637] wherein it was held by Hon’ble Supreme Court that any spouse is free to withdraw consent at any time before the passing of the decree. Several other judgments were also discussed and ultimately the Hon’ble High Court has relied upon the judgement passed by Hon’ble Bombay High Court in case of Prakeash Alumal Kalamdari vs Jahnavi Prakash Kalandari [2011 KHC 2559] wherein it was 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 held that the wife was precluded from withdrawing her consent by the principles of promissory estoppel by saying "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", the judgment held. And thus, allowing the appeal, the High Court passed a decree of divorce.
Different View Adopted by Hon’ble Delhi High Court
Delhi High Court in a judgment dated 15.05.2018 in a batch of contempt petitions bearing CONT.CAS(C) 772/2013 titled as Rajat Gupta versus Rupali Gupta and related matters has held that that though, a party has absolute right to agree or not to agree for mutual consent divorce and Courts cannot force a party for mutual consent divorce. But if a party breached the undertaking given to the Court regarding mutual consent divorce, it may amount to Contempt of Court.
Answering the Reference made to the larger Bench by a single judge in a batch of contempt petition Division Bench of Hon’ble High Court of Delhi has held as under:
On a conspectus of the case law discussed above, the four questions of law framed by the learned Single Judge are answered thus:-
“60. Question (A) Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both and has also undertaken to appear before the said Court for obtaining divorce can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13B(2) of the Act?
Answer: (a) The answer to Question (A) is yes. The distinguishing feature of Section 13B of the Act, 1955 is that it recognizes the unqualified and unfettered right of a party to unilaterally withdraw the consent or reconsider/renege from a decision to apply for divorce by mutual consent, notwithstanding any undertaking given in any legal proceeding or recorded in any settlement/joint statement, in or outside the court, resulting in a consent order/decree, to cooperate with the other spouse to file a petition under Section 13B(1) or a second motion under Section 13B(2) of the Act, or both. Withdrawal of the consent even at the stage of the enquiry, as contemplated under Section 13B(2), is also in exercise of the right available to a party under the very same provision. In other words, the mutuality of the consent to divorce should commence from the stage of filing the First motion under Section 13B(1) and it should continue at the time of moving the Second motion under Section 13B(2) of the Act, till such time that the court completes the enquiry and a decree of divorce is finally passed. The said element of mutual consent is a sine qua non for passing a decree of divorce. This being the legal position, the defaulting party cannot be compelled to file or appear in the petition or motion or both, to obtain divorce by mutual consent. (b) Any other view will not only impinge on the jurisdiction of the court which has an obligation under the Statute to undertake an independent enquiry before passing a decree of divorce by mutual consent, it will also encroach upon a statutory right vested in a party under Section 13B(2) of the Act and go against the very spirit of the provision, at the heart of which lies the right of a party to reflect/revisit and retract from its decision of going ahead for grant of divorce by mutual consent, during the cooling off period. (c) At the same time, a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree. In the event the aggrieved party approaches the court for initiation of contempt proceedings against the defaulting party for wilful/deliberate breach of any of the terms and conditions of an undertaking/settlement agreement/consent order or a decree and takes a plea that as a consequence thereof, he/she has been placed in a disadvantageous position or has suffered an irreversible/grave prejudice, the court in exercise of its inherent powers of contempt, supplemented by the 1971 Act has the requisite jurisdiction to entertain the petition and direct restoration of status quo ante in every possible way. Besides directing the defaulting party to disgorge all the benefits/advantages/privileges that have/would have enured in its favour and restoring the parties to the position that was before they had arrived at such a settlement/agreement/undertaking and/or before the consent order/decree was passed in terms of the settlement arrived at/undertakings recorded, the court has the discretion to punish the defaulting party for civil contempt, depending on the facts of a given case. Thus, contempt jurisdiction operates in a different field and is uninfluenced by the fetters imposed on a court under the Act of 1955. The only rider to the above is that no direction can be issued even in contempt proceedings to compel the defaulting party to give its consent for a decree of divorce by mutual consent, as it is opposed to the object, policy and intent of Section 13B of the Hindu Marriage Act.
61. Question (B) Whether by undertaking before a Court to file a second motion under Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13B(2) of the Act, 1955?
Answer: (a) The answer to the first limb of Question (B) is no. Notwithstanding any undertaking given by a party before a court to file a Second motion under Section 13B(2) or at the Section 13B(1) stage or in any separate court proceedings, its right to rethink/renege under Section 13B(2) of the Act, cannot be waived for the reason that such a waiver is proscribed by the Statute that keeps a window open for the parties to withdraw their consent at any stage till the decree of divorce is finally granted. The element of mutual consent remains the leitmotif of the said provision and its existence is a salient and recurring theme that like warp and weft, weaves its way through the entire process set into motion at the Section 13B(1) stage, followed by the Section 13B(2) stage, till the very end when a decree of divorce is granted. The right of withdrawal of consent in the above proceedings can be exercised at any stage and exercise of such a discretion cannot be treated as being opposed to public policy. Any other interpretation given to the aforesaid provision would negate the underlying aim, object and intent of the said provision. Once a party decides to have a second thought and on reflection, backs off, the concerned court cannot compel the defaulting party to give its consent on the basis of an earlier settlement/undertaking. (b) In view of the answer given to the first limb of Question (B), the second limb of the said question needs no answer.
62. Question (D) Whether the judgment in Avneesh Sood (supra) and Shikha Bhatia (supra) are good law in view of the doubts expressed by this Court in paras 19 to 28 and in view of the Division Bench judgment in Dinesh Gulati (supra).
Answer: (a) The correct position in law has been expressed by the Division Bench in the case of Dinesh Gulati (supra), where it was held that once the parties do not wish to proceed with the agreement for a mutual consent divorce, then the only appropriate course would be to restore the status quo ante by reviving the divorce petition pending between the parties. The only discordant note that the aforesaid judgment appears to strike is the consequential order of quashing the suo moto proceedings initiated by the learned Family Court against the defaulting party therein, namely, the husband. Having carefully perused the brief two pages order where one of us (Deepa Sharma, J.) was a member of the Division Bench, it is evident that the said order was passed in the circumstantial facts of the case. There is no discussion on the legal principles governing contempt proceedings, in circumstances where an aggrieved spouse approaches the court alleging breach of the undertaking/settlement agreement/consent order/decree by the defaulting spouse. Nor is there an analysis of the judicial precedents on the said subject. Therefore, it cannot be said that the said order would have a precedential value or has laid down the law on the aspect of the powers of the court to initiate contempt proceedings for violation of the terms of the consent order/decree/undertaking. It is a settled law that a case is an authority only for what it decides and not for what may incidentally follow therefrom [Refer: Ambica Quarry Works and Anr. vs. State of Gujarat and Ors., (1987) 1 SCC 213; Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and Ors., (2003) 2 SCC 111; Bharat Petroleum Corporation Ltd. and Anr. vs. N.R.Vairamani and Anr., AIR 2004 SC 778 and U.P. State Electricity Board vs. Pooran Chandra Pandey and Ors., (2007) 11 SCC 92]. (b) In the case of Shikha Bhatia (supra), where an amicable settlement between the husband and wife was recorded and an order was passed by the Delhi High Court on an anticipatory bail application filed by the husband and his parents and later on, the husband had willfully violated the undertakings given by him in the agreement, compelling the wife to file a contempt petition, the learned Single Judge arrived at a conclusion that the husband had willfully and deliberately disregarded the settlement recorded in court and on the strength of the said settlement, had virtually stolen an order of bail from the court. It was therefore held that the husband had interfered in the judicial process and was guilty of contempt of court. (c) In the case of Avneesh Sood (supra), the learned Single Judge was of the view that once the wife had given her consent to file a joint petition for grant of divorce by mutual consent and after crossing the first stage under Section 13B(1), given an undertaking to the court in terms of a settlement recorded in the MOU executed by the parties that she will move the Second motion petition, she could not have reneged from the said undertaking accepted by the court as it would undermine the majesty and authority of the court and amount to an abuse of the process of the court. In the concluding para of the said judgment, while holding the wife guilty of contempt of court for having breached the undertaking given by her to the Family Court in the First motion petition moved under Section 13B(1) of the Act, notice to show cause was issued to her as to why she should not be punished for contempt of court, primarily on the ground that she had derived benefits and advantages from the settlement executed with her husband. (d) That the court was mindful of the fact that under the Statute, the wife could not have been compelled to give her consent for moving a Second motion petition, as she had a right to withhold such a consent, can be gleaned from the following observations:- 39. The issue which arises for my consideration is whether the conduct of the respondent in resiling from her undertaking given to the Court, by which she was bound, tantamounts to contempt of Court. ―Civil Contempt‖ is defined to mean willful disobedience of any judgment, decree, direction, order, writ or other process of the Court or wilfull breach of an undertaking given to a Court. The respondent has sought to confuse the issue by asserting that she has a right not to give her consent to proceed further under Section 13-B(2) of the Hindu Marriage Act after the ―cooling off‖ period of 6 months has expired. No doubt, the respondent cannot be compelled to give her consent for moving the second motion petition under Section 13-B(2), and she has the right to withhold such consent. ….. (e) In both the captioned cases, the learned Single Judges have in exercise of the powers vested in them under Sections 10 and 12 of the Contempt of Courts Act, 1971 declared the respondents therein as guilty of contempt of court for having breached the undertakings given by them to the court. For holding so, notice was taken of their conduct of violating/breaching the terms of settlement and their undertakings given to the court and at the same time, seeking to gain advantages/benefits under the very same agreement. (f) In our respectful submission, the learned Single Judges have correctly expounded the law on the inherent powers of the court to initiate contempt proceedings against the respondents therein for contempt of court in the given facts and circumstances of those cases. Therefore, there is no conflict in the views expressed by the Division Bench in the case of Dinesh Gulati (supra) vis-à-vis the views expressed by the Single Judges in the cases of Avneesh Sood (supra) and Shikha Bhatia (supra).
63. Question (C) Whether any guidelines are required to be followed by the Court while recording the undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both for obtaining divorce?
Answer: The general guidelines suggested to be followed by the Court while recording undertaking/agreement of the parties are as below:-
(1) If the parties amicably settle their inter se disputes and differences, and arrive at a settlement, whether of their own accord, or with the aid and assistance of the court or on exercising the ADR processes (mediation/conciliation/Lok Adalat), or otherwise, the settlement agreement that may be drawn up, must incorporate the following:- i) Record in clear, specific and unambiguous language, the terms/stipulations agreed upon between the parties; ii) Record in clear, specific, simple and unambiguous language, the mode, manner, mechanism and/or method for the implementation or compliances of the terms/stipulations agreed upon between the parties; iii) Record an undertaking of the parties that they will abide by and be bound by the agreed terms /stipulations of the settlement agreement; iv) Stipulate a fine or penalty as may be agreed upon, in the event of a default of the agreed terms/stipulations of the settlement agreement by either side; v) Provide for the consequences of the breach of the terms/stipulations of the settlement agreement; vi) Record a declaration of both the parties in unequivocal and unambiguous terms that they have agreed on each and every term recorded in the settlement agreement, after carefully reading over and fully understanding and appreciating the contents, scope and effect thereof, as also the consequences of the breach thereof, including payment of the fine/penalty, if so agreed; vii) The settlement agreement must state that the terms have been settled between the parties of their own free will, violation and consent and without there being any undue pressure, coercion, influence, misrepresentation or mistake (both of law and fact), in any form whatsoever. It should also be stated that the settlement agreement has correctly recorded the said agreed terms.
(2) The settlement agreement may include a term/stipulation that the parties have agreed that they would dissolve their marriage by mutual consent, which necessarily has to be in accordance with the law, as provided under Section 13B of the Hindu Marriage Act.
(3) The settlement agreement may include other terms/stipulations settled between the parties including payment of money, transfer of moveable/immovable properties as for example, jewellery/stridhan, maintenance amounts, alimony etc. or plans for the custody of the children/visitation rights of children. The said terms must be scrutinized by the court to satisfy itself that they are in accordance with the spirit of law and are enforceable and executable.
(4) On the said settlement agreement being presented, along with a report (in the event the settlement is arrived at through mediation or conciliation or Lok Adalat) to the court where the proceedings between the parties are sub judice, the said court should apply the procedure and principles to be followed by a civil court under and/or analogous to the provisions of Order XXIII Rule 3 of the Code of Civil Procedure.
(5) To avoid any ambiguity or misunderstanding on the part of either of the parties, at a later stage, a clear and unambiguous undertaking to the court must be recorded.
(6) The statements of the parties may be recorded by the court after putting them on oath in the following manner:- a) the parties should affirm the terms of the settlement; b) the fact that they have executed the settlement agreement after fully understanding the terms, consents, effect and consequences thereof; c) that the same has been arrived at of their own free will and volition; d) that they would be liable for penal consequences in case of breach.
(7) In the alternative, the court may direct the parties to file their respective affidavits affirming the terms and conditions of the settlement. If considered necessary, the court may ask the parties to formally prove not only the said affidavits, but also the settlement agreement executed by them.
(8) The Court must apply its judicial mind to satisfy itself that the settlement arrived at between the parties is not only bonafide, equitable and voluntary in nature, but is enforceable in law and is not opposed to public policy. The court must also satisfy itself that there is no impediment of any nature in accepting the said settlement and the undertakings of the parties and binding them down thereto.
(9) After perusing the settlement agreement, recording the statements of the parties and/or examining the affidavits filed by them, as the case may be, the Court must specifically accept the statements of the parties and/or the undertakings given by them as also the terms/stipulations of the settlement agreement and direct that they shall remain bound by the same.
(10) Depending upon the jurisdiction of the Court, appropriate orders/decree be passed. The said order/decree, as the case may be, should clearly spell out the consequences of breach, violation of any of the terms of the settlement agreement. In the event any fine/penalty has been agreed to be paid under the terms of the settlement agreement or in case of breach of the same, the order shall state that the said amount will be recovered from the defaulting party. The parties must be informed that they will be liable to be punished for contempt of court in the event of any breach/violation/willful/deliberate disobedience of the terms of the settlement agreement.
(11) A decree/order shall be passed by the Court in respect of the subject matter of the suit/proceedings. For those matters/disputes that are not the subject matter of the suit/proceedings, where a settlement has been reached before a non-adjudicatory ADR fora, the Court shall direct that the settlement agreement shall be governed by Section 74 of the Arbitration and Conciliation Act (in case of a settlement through conciliation) and/or Section 21 of The Legal Services Authorities Act, 1987. (in respect of a settlement by a Mediator or a Lok Adalat) [Refer: Afcons Infrastructure Ltd. (supra)]
(12) If the obligations under the settlement agreement/undertaking/consent order/decree are breached by one party, then, at the instance of the aggrieved party, appropriate orders shall be passed in accordance with law.
(13) For breach of the undertaking given to the concerned court or willful/deliberate violation of a consent order/decree, if so approached or otherwise, the court would take appropriate action as permissible in law to enforce compliance by the defaulting party by exercising contempt jurisdiction as contemplated under Section 2(b) of the Contempt of Court Act, 1971. This will however exclude any coercive orders compelling the defaulting party to give its consent for grant of a decree of divorce by mutual consent, notwithstanding any settlement/undertaking given by the parties before any fora.
64. The present Reference is answered in the above terms.”
Hon’ble Supreme Court’s Judgment on the Subject
Case title: Smt. Sureshta Devi vs Om Prakash on 7 February, 1991 [1992 AIR 1904, 1991 SCR (1) 274]
This is the first judgment in which Hon’ble Supreme Court came cross the issue of divergent judgments by various High Courts on this subject and after considering the legal provisions, the Hon’ble Supreme Court held that either party can withdraw the consent anytime before passing of mutual consent divorce decree. The relevant portion of judgment is as under:
“The question with which we are concerned is whether it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition. The need for a detailed study on the question has arisen because of the fact that the High Courts do not speak with one voice on this aspect. The Bombay High Court in Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR 1984 Bom. 302, has expressed the view that the crucial time for the consent for divorce under Section 13-B was the time when the petition was filed. If the consent was voluntarily given it would not be possible for any party to nullify the petition by withdrawing the consent. The court has drawn support to this conclusion from the principle underlying Order XXIII Rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs or one of the parties to the suit. The High Court of Delhi adopted similar line of reasoning in Smt. Chander Kanta v. Hans Kumar and Anr., AIR 1989 Delhi 73 and the Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta,  11 DMC 388 also took a similar view But the Kerala High Court in K.L Mohanan v. Jeejabai, AIR 1988 Kerala 28 and the Punjab and Haryana High Court in Harcharan Kaur v. Nachhattar Singh, AIR 1988 Punjab & Haryana 27 and Rajasthan High Court in Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128 have taken a contrary view. It has been inter alia, held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the Court passes a decree for divorce. The satisfaction of the Court after holding an inquiry about the genuineness of the consent, necessarily contemplates an opportunity for either of the spouses to withdraw the consent. The Kerala High Court in particular has ruled out the application of analogy under Order XXIII Rule I of the Code of Civil Procedure since it is dissimilar to the situation arising under Section 13-B of the Act.
From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be party to the joint motion under sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub- section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties .... if the petition is not withdrawn in the meantime, the Court shall pass a decree of divorce What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bonafides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.
Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutualitly and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It 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". [See (i) Halsbury Laws of England, Fourth Edition Vol. 13 para 645; (ii) Rayden on Divorce, 12th Ed. Vol. 1 p. 291 and (iii) Beales v. Beales, [ 1972] 2 All E. R. 667 at 674].
In our view, the interpretation given to the section by the High Courts of Kerala, Punjab & Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view. The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh (supra) cannot be said to have laid down the law correctly and they stand overruled.
In the result, we allow the appeal and set aside the decree for dissolution of the marriage. In the circumstances of the case, however, we make on order as to costs.”
The judgment of Hon’ble Supreme Court in Sureshta Devi vs Om Prakash decided on 7 February, 1991 was reiterated by Hon’ble Supreme Court in subsequent judgments by reiterating that any spouse can withdraw consent anytime before passing of decree of mutual consent divorce. Various High Court including Delhi High Court has reiterated the same legal position however some distinction was carved by Hon’ble Delhi High Court in aforesaid judgment in Rajat Gupta vs Rupali Gupta case where it was held that unilateral withdrawn of consent by spouse may amount of contempt of Court for breach of undertaking given to the Court. However, the aforesaid latest judgement of Hon’ble Kerala High Court has again unsettled the legal position regarding withdrawal of consent in mutual consent divorce.Tags : #Advocate for Mutual Consent Divorce in Delhi, #BEST MUTUAL CONSENT DIVORCE ADVOCATE IN ROHINI, # Mutual Consent Divorce Lawyer in Tis Hazari, #mutual consent divorce Lawyer , #BEST MUTUAL CONSENT DIVORCE ADVOCATE IN DELHI