Withdrawal of consent for divorce

If unilateral withdrawal of consent for divorce is not genuine and is a farce, then withdrawal of consent is liable to be ignored and inference of continued consent of grant of divorce by mutual consent can be safely drawn and court can grant divorce decree and dissolve the marriage.

The mischievous and unilateral withdrawal of consent by wife at a belated stage, more so when she has accepted the money and never made any effort to reconcile in the past 7 years, cannot be said to be a genuine act.

In such cases in the present day society, the 'consent' is mischievously withheld or delayed to extort more amount of permanent alimony than the one initially agreed upon and received by the estranged wife from the forlorn husband. An application to formally withdraw the petition under Section 13B moved unilaterally without real intent to join back & restore the matrimonial home can be used as a tool for harassment of the husband to extort more money from him, knowing well that at that stage pushing him to the channel of regular divorce petition would not only be a long drawn process but the same would not allow him any opportunity to remarry with the advancing age if he still wants it & settle in life again.

What has been stated by the wife in this case is not genuine. She has no intention to live together and she never made any effort to reconcile nor refunded the money taken. Her statements are nothing but simply tissues of lies and simply an afterthought."

The court held that if consent is sought to be withdrawn on some frivolous grounds or just to open a front to extort more money, then the withdrawal of such consent has to be examined in the background of the reasons given for such withdrawal and the courts below can still pass a decree of divorce even if the wife has moved an application to annul the divorce petition filed jointly with her estranged husband.

(A) The courts of law have also held that:

"Under the circumstances court cannot agree with unilateral withdrawal by a spouse at the time of mutual divorce."

Delhi High Court
Smt. Rachna Jain vs Shri Neeraj Jain
Author: M Mudgal
Bench: M Mudgal
JUDGMENT Mukul Mudgal, J.

After mutually agreeing to divorce, withdrawal of consent by a spouse constitutes mental cruelty.

Unless there is sufficient or just cause, such withdrawal of consent without valid reasons adds to misery of the other partner.

26. Similar is the situation in the present case, the parties are living separately since the year 2009 and considering the conduct of the parties, there seems to be no possibility of their joining together so to insist to retain this matrimonial bond in the circumstances stated above would rather be putting the respondent under intense mental cruelty.

RAJIV CHHIKARA versus SANDHYA MATHUR
MAT.APP.(F.C.) No.163/2016
(YOGESH KHANNA) JUDGE
(PRADEEP NANDRAJOG) JUDGE
The Apex Court described the test of Mental Cruelty.
Supreme Court of India
Samar Ghosh vs Jaya Ghosh
Author: D Bhandari
Bench: B.N. Agrawal, P.P. Naolekar, Dalveer Bhandari

(C) Central Government Act

Section 13B in The Hindu Marriage Act, 1955

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

(iii) ………..Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties…………..There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

(D) The courts of law and learned judges have time and again risen to defend the interest of party that is not at fault and to deliver the justice, in its pure form.

In this case the steps taken by Justice DR.VINEET KOTHARI are commendable.

IN case of Anil Khatwani vs Smt.Nisha Khatwani

The High Court had ordered:

Both the parties are directed to file their affidavits with regard to following:

(i) Whether they are willing to live together in the same matrimonial home even now or not;

(ii) Whether they want to have a divorce by mutual consent under Section 13B of the Act. If `No', then they should assign reasons for the same and also indicate in their affidavits the steps taken by them so far for restoration of matrimonial home and matrimonial relationship;

(iii) The respondent wife may also state in her affidavit as to whether she is ready and willing to take additional reasonable amount of permanent alimony, besides Rs. 5 lacs already paid by appellant Husband, for her and her son's future maintenance and welfare from the appellant husband & to give her consent for divorce by mutual consent under Section 13 B of the Act. If so, how much amount and within what period she expects the same.

(iv)The appellant husband may also indicate such amount of additional permanent alimony, which he would be ready and willing to pay for maintenance of future welfare of respondent wife and their son, Master Siddharth, who is now stated to be about 8 years of age.

The aforesaid affidavits may be filed within a period of one week from today positively, failing which adverse inference may be drawn against them.

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Kumar Doab 
on 28 March 2017
Published in Family Law
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