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one party cannot withdraw consent for divorce: hc

propra

http://www.indianexpress.com/news/one-party-cannot-withdraw-consent-for-divorce-hc/787742/1

 

Justice A M Khanwilkar and Justice Mridula Bhatkar

Posted: Mon May 09 2011, 01:01 hrs

Mumbai:

The Bombay High Court has held that “before the decree (of divorce by mutual consent) is passed, one party cannot be allowed to unilaterally withdraw the consent if the other party has already acted upon the consent terms either wholly or in part to his or her detriment.”

A Division Bench of Justice A M Khanwilkar and Justice Mridula Bhatkar observed that the court can allow one of the litigating spouses to backtrack from the agreements made for a divorce by mutual consent only if there is a reason good enough for it and the rights of the other party are not prejudiced.

The court was hearing an appeal filed by a Pune-based couple that had been separated since 2006. They were married in August 1993 and have two children. Initially, the petition for divorce was filed by the wife on the grounds of cruelty. There were other complaints filed by her under Section 498-A (harassment) of the IPC.

On October 6, 2008, however, the husband and wife agreed for a divorce by mutual consent and the wife withdrew the criminal complaints lodged against the husband. She also relinquished her right for alimony and agreed to transfer the property in her name to that of her husband. While the custody of both the children was given to her she had agreed to let him have access to them on weekends and during school vacations.

However, at a later stage the husband refused to seek a divorce by mutual consent contending that the consent terms were not irrevocable. He said his wife had faulted on granting him access to their children. However, the wife informed the court that he failed to meet the children as he was facing criminal charges in some other case and was in jail on the day he was supposed to meet them. On March 31, 2009, the family court in Pune granted the couple a divorce by mutual consent.

Agreeing with the family court’s order, the judges held that the wife had “performed her obligations and committed herself to waive the claim of maintenance for herself and also streedhan including to withdraw civil and criminal actions initiated by her against the appellant (husband). Even for this reason, the appellant cannot be permitted to withdraw his consent as it would result in bestowing premium on the appellant in spite of his unjust and inequitable request to allow him to unilaterally withdraw the consent.”

 


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Lawyer

The doctrine of promissory estoppel is applicable in the case. Where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word


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UNEMPLOYED

"one party cannot be allowed to unilaterally withdraw the consent if the other party has already acted upon the consent terms either wholly or in part to his or her detriment.”

---   ACCORDING TO THE ACT OF MUTUAL CONSENT UNDER HMA, THIS PROVISION IS THERE.

promissory estoppel NOT APPLICABLE IN HMA.

THE ACT IS STRAIGHT AND CLEAR.

13B. Divorce by mutual consent.

(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 solemnized 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 solemnized 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

 
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UNEMPLOYED

AS IT IS WITHIN THE LAW, A STREIGHT AND CLEAR LAW, SCOPE OF promissory estoppel NOT APPLICABLE.

 
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UNEMPLOYED

I HOPE IF THE PARTY GO TO SC THEY WILL WIN.

 
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propra

 

Promissory Estoppel :- ..............

the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him

 

 

Promissory estoppel does not aply here......

 

 

The party withdrawing consent wasn't saying that 'I never agreed for mutual consent'................. But saying that ............ I did agree initially but there was no promise from my side that  I would continue to hold the consent !! ... Such an undertaking wasn't there in my first motion..... and nor it was mandatory that I would have to continue my consent!!!

 

 

HC's Intervention into a bilateral agreement in  adversarial  system, shouldn't sound as 'an abuse of/or travelling beyond the discretion'.

Is there any mention in any law that ..........

 'What are the proper grounds for withdrawing the consent?' 

 

If mutual consent is given or can be given for 'no reasons' (like compatibility etc etc ) whatsoever  ......

it can be withdrawn for no reasons as well.

 

Actually above verdict  legitimised the trend of  .......................  'filing of 498a etc cases for no reason in reality (to put it bluntly ///false cases)'

 

Two wrongs do not make ne right.

 

Husband is deprived from his right to execise 'withdrawl of consent' if wishes to do so!!! 

 

In Above case, High Court has actually re-written the law which was not within its jurisdiction!!!

 

 

Real problem in here is that lawyers from both side also don't really put necessary efforts to make the agreement for consent a fullproof!!! the fallback conditions etc. .............

 

....................... its like a doctor who won't make his patient 100% cured but only as much as the patient shells out!!

 

 

The laxity of lawyers drafting the consent agreement is the cause ... but Court unnecessarily intervened into it to rectify the laxity committed by wife's lawyer ................. This intervetions prejudiced the husband!!!

 

 
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propra

A correction ................................

HC's Intervention into a bilateral agreement in  adversarial  system, shouldn't sound as 'an abuse of  the discretion'/or travelling beyond the bandwiddth allowed for the discretion'.

 
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ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com

This is the effort to mould the law in your favor with you views. The HC has rightly opied that once the party has acted on the promise of other the same can not be retraced.

And SC is not heven or remedy for all to suit to individual opinion.

And do not fault with advocates for the personal problems and due process of law.

 
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UNEMPLOYED

This is the effort to mould the law in your favor with you views. The HC has rightly opied that once the party has acted on the promise of other the same can not be retraced. And SC is not heven or remedy for all to suit to individual opinion. And do not fault with advocates for the personal problems and due process of law.

 

---   what is the meaning of above lines ?

what do you want to say?

 
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propra

I disagree with you!

 

 

Once the party(A) has acted on the promise of other(B) .................... that party(A) may ONLY expect/wish that the other party(B) also complies, ..................................... and if other party(B) does not comply and refuses and alters the stand ........................then to safeguard against this likelihood (or as aprobable scenario) that party(A) shouldincorporate enough safeguards in the agreement, in anticipation of such an event as a possibility!!!

 

 

What are agreements made for then? All this exercise is to adress the risks only!!!

 

 

Agreements are meant for that only .......................  There has to be such safeguards.

 

 

If party(A) does not safeguard then it solely that party's mistake.

Court can't intervene to show sympathy to party(a)? It is a clear bias against the party(B) for his smartness or cleverness.

 

Have you seen buyer-seller agreements in purchase of property from a builder?. ..........

 

 

If a person/buyer goes in court against the builder then courts don't show sympathy to buyer just bcos buyer did not safeguard his interest!!! Courts just put finger on the wordings of the agreeement.

 

 

 

 

All the disputes where one party loses in a civil suit is only because they don't have those safeguards ...............

 

 

Then all such CIVIL suits should be re-opened and be given a sympathetic verdicts which becomes a favourable to previously lost party!!!!

 

 

 

 

Who had stopped the party(A) to incorporate such safeguards?

 

Already MCD is mised as a 'mandawali divorce'  and this verdict just legitimised it!!!

Very unfortunate verdict!!

 

This is what is the prejudice and abuse of process!!!

 
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