The judgment emphasizes the importance of mutual consent for divorce under Section 13-B of the Hindu Marriage Act, 1955, and the significance of Rule 31 of the Family Courts (Maharashtra) Rules, 1987, in pronouncing a decree based on settlement terms.

JUDGMENT

Mangesh S. Patil, J. - Heard. Rule. The Rule is made returnable forthwith. Learned advocate for the respondent waives service. At the request of both the sides the matter is heard finally at the stage of admission.

2. The question that arises for determination by this Court is as to whether in a proceeding for divorce instituted by the respondent-husband on the ground of desertion under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter 'the Act') when the parties i.e. petitioner-wife and the respondent-husband have settled the terms of compromise before the marriage counsellor inter alia agreeing to obtain a divorce by mutual consent under Section 13-B of the Act he can be permitted to withdraw the consent. The issue arises from following facts :

(i) The parties solemnized the marriage on 24.04.2012. Due to matrimonial dispute they started living separately since March 2013. Respondent-husband instituted a petition for divorce on the ground of desertion under Section 13(1)(i-b) of the Act. The parties appeared before a marriage counsellor and settled the terms which were filed before the Family Court at Exh. 7 (Exh. 'C' of the Writ Petition). The learned Judge put up an endorsement on it which reads thus :

"Both parties admit consent terms

sd/-

28.06.2017"

(ii) The respondent-husband then filed an application (Exh. 11) inter alia contending that in terms of the compromise he has paid Rs. 25,00,000/- to the petitioner-wife but now it is difficult for him to pay the remaining amount from of Rs. 1,10,00,000/- (Rs. One Crore Ten Lakh only) and therefore he may be permitted to withdraw his consent.

(iii) The petitioner opposed that application by filing a say (Exh. 15). It was contended that the terms and conditions were settled before the counsellor and the consent could not be withdrawn. In view of the consent terms the petition ought to have been treated as a petition under Section 13-B of the Act. It was also contended that even the request for withdrawal of consent was moved after a lapse of more than a year and, therefore, he should be made to pay the remaining amount of Rs. 86,00,000/- (Rs. Eighty Six Lakh only) together with interest.

(iv) The learned Judge of the Family Court allowed the application of the respondent-husband (Exh. 11) and permitted him to withdraw the consent.

3. The learned advocate for the petitioner-wife submits that since the terms and conditions were settled before the marriage counsellor, there was no question of withdrawal. The terms were duly presented before the Family Court and for all practical purposes the petition thereafter ought to have been proceeded under Section 13-B of the Act. The learned advocate would then submit that in view of the provisions of Rule 31 of the Family Courts (Maharashtra) Rules, 1987 the terms of settlement agreed before the marriage counsellor have sanctity and finality.

4. Learned advocate for the petitioner would then place reliance on the Division Bench decision of this Court in the case of Prakash Alumal Kalandari Vs. Jahnavi Prakash Kalandari; 2011(4) Mh.L.J. 187 and Jayshree Ramesh Londhe Vs. Ramesh Bhikaji Londhe; 1984 Mh.L.J. 308.

5. Per contra, the learned advocate Mr. Gangakhedkar for the respondent-husband submits that admittedly, in terms of the settlement he has already paid an amount of Rs. 25,00,000/- to the petitioner-wife. Since he has been unable to pay the remaining amount he sought to withdraw the consent. He would submit that the proceeding was never converted to the one under Section 13-B of the Act. Even till date it continues to be a petition for divorce on the ground of desertion under Section 13(1)(i-b) of the Act.

6. He submitted that the decision in the case of Prakash Kalandari (supra) was rendered in the peculiar facts and circumstances of the case. In that matter, pursuant to the terms of settlement the wife had proceeded to withdraw criminal matters and thereby had acted on the terms of settlement. In the matter in hand, exce