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2011 Supreme(Bom) 559

A.M.KHANWILKAR, MRIDULA BHATKAR
Prakash Alumal Kalandari – Appellant
Versus
Jahnavi Prakash Kalandari – Respondent


Advocates appeared:
For the Appellant:Ms. S.P. Nanavati, Advocate. For the Respondent:Anil Menon with S.B. Shetty, Advocates.

Judgement Key Points

Based on the provided legal document, the key points are as follows:

  1. The appeal challenges the Family Court’s decision to not permit the withdrawal of consent for divorce by mutual consent and to proceed with granting the decree of divorce based on the executed Consent Terms (!) (!) .

  2. The marriage was initially contested on grounds including cruelty, but during the pendency, the parties mutually agreed to divorce by mutual consent, executing Consent Terms that outlined arrangements for custody, access, maintenance, and transfer of assets (!) .

  3. The appellant sought to withdraw his consent, claiming that the respondent failed to provide access to the children, which was the sole reason for withdrawal (!) (!) .

  4. The Family Court rejected the withdrawal application, holding that the appellant’s reason was unsubstantiated, and that the parties had acted upon the Consent Terms, which included waivers and commitments by both sides (!) (!) .

  5. The appellate court upheld the Family Court’s order, emphasizing that mutual consent must be maintained throughout the process until the divorce decree is passed, and that unilateral withdrawal of consent before the decree is not permissible unless justified by just cause (!) (!) (!) .

  6. It was noted that the respondent had acted upon the Consent Terms, including waiving claims and withdrawing criminal proceedings, which further constrained the appellant’s ability to withdraw consent unilaterally (!) (!) .

  7. The court clarified that consent given under such circumstances is not irrevocable but should be supported by just cause if withdrawn before the final decree. In this case, the appellant’s reasons did not meet this standard (!) (!) .

  8. The Rules governing settlement procedures before the court support that a decree based on mutual consent can be pronounced if the terms are reduced to writing and signed by the parties, provided they are not unconscionable, unlawful, or contrary to public policy (!) .

  9. The appeal was dismissed, and the Family Court’s order was upheld, with costs awarded to the respondent (!) .

  10. The court reserved the right of the parties to pursue further proceedings to implement the terms of the Consent Terms, such as access arrangements, which would be decided on their merits in accordance with law (!) .

These points summarize the court’s reasoning, the importance of continued mutual consent in divorce proceedings under mutual agreement, and the legal principles guiding withdrawal of consent prior to the final decree.


JUDGMENT :-

A.M. Khanwilkar, J.

1. This appeal takes exception to the Judgment and Decree passed by the Family Court No.3, Pune dated 31st March, 2009 in Petition No.A-877/2007. The respondent/wife filed Petition for a decree of divorce on the ground of cruelty. The said Petition was contested by the appellant/husband by filing written statement and counter claim. The appellant also prayed for custody of children.

2. The marriage between the appellant (husband) and respondent (wife) was solemnized on 12th August, 1993 at Pune as per the Hindu Vedic rites. After their marriage, they lived and cohabited together initially at Moscow, then at France and lastly at Pune. Two children are born out of the said wedlock namely; daughter Lavanya born on 22nd June, 1995 and son Rahul born on 11th January, 1999. The children are in the care and custody of the respondent mother. The parties started living separately since June, 2006. Since then, there has been no cohabitation between them.

3. During the pendency of the abovesaid Petition, the parties decided to take divorce by mutual consent. Accordingly, Consent Terms were executed and signed by both of them on 6th October, 2008, which were pl
























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