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2011 (3) ALL MR 807
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE A.M. KHANWILKAR & THE HONOURABLE MRS. JUSTICE MRIDULA BHATKAR
Mr.Prakash Alumal Kalandari
Versus
Mrs.Jahnavi Prakash Kalandari
FAMILY COURT APPEAL NO.61 OF 2010
Decided on : 06-05-2011
Court finds no infirmity in the order passed by the Family Court in rejecting the application (Exhibit 80) preferred by the appellant and instead, having decreed the petition by dissolving the marriage solemnized between the appellant and the respondent and granting decree of divorce by mutual consent on the basis of the terms specified in Consent Terms (Exhibit 71).
Based on the provided legal document, the key points are as follows:
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 (!) (!) .
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 (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) (!) .
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 (!) (!) .
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court clarified that consent given under such circumstances is not irrevocable but should be supported by just cause if withdrawn before the final decree.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 (!) (!) .
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 (!) .
The appeal was dismissed, and the Family Court’s order was upheld, with costs awarded to the respondent (!) .
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.
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 placed on record before the Family Court being Exhibit 71. The parties thereafter jointly filed application at Exhibit 72 to convert the Petition for divorce into joint Petition for divorce by mutual consent. As per the Consent Terms, the appellant had agreed that the custody of both the children would remain with the respondent wife. The respondent wife on the other hand, agreed to give access of both the children to the appellant during the weekend on every Sunday at the designated place and time and during the Diwali and Christmas vacations every day at the same venue and same time. Insofar as summer vacation, temporary custody of both the children was to be given to the appellant husband for the first half of the vacation when he could take the children away from Pune for vacation under intimation to the respondent wife. The parties also agreed that they would jointly take decision in respect of education and other activities of the children. The appellant agreed to pay maintenance of Rs.5,000/- per month for each child with increase at the rate of 15% every two years. The respondent wife waived her claim of maintenance and alimony and her streedhan. The respondent wife also agreed to cooperate with the appellant husband for the transfer of shares, properties-movable and immovable of the respondent in Company KAPEXL Healthcare Private Limited. Besides, both parties agreed to withdraw all the criminal and civil proceedings filed against each other.
4. After filing of Consent Terms recording the above arrangement, the hearing was deferred for some time. The Advocate for the appellant thereafter withdrew his Vakalatnama and on 16th February, 2009, the appellant filed application Exhibit 80 to withdraw his consent given on the application Exhibit 71 to grant divorce by mutual consent. The sole reason mentioned in this application is that the respondent wife failed to comply with her obligation to provide access of the children to the appellant husband. He has asserted that he was therefore withdrawing his consent, keeping in mind the paramount interest and welfare of the children. The said application Exhibit 80 was resisted by the respondent wife by filing reply Exhibit 81. According to the respondent, she never refused to grant access of children to the appellant. Whereas, the appellant was arrested in connection with various criminal matters and could not avail of access during the relevant period, as he was in jail. In substance, she refuted the allegations in application Exhibit 80 that she failed to comply with any of the terms of Consent Terms executed between the parties. She has also asserted that the children were not keen on meeting the appellant and refused to accompany the appellant, which fact was known to the appellant. She also asserte
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