Unilateral withdrawal of consent for divorce by mutual consent after one party has performed their part of the agreement is not permissible.

JUDGMENT :

(C. Pratheep Kumar, J.) :

This is an appeal filed by the 2nd petitioner in OP. No.906/2020 on the file of the Family Court, Ernakulam, against the judgment dated 13.11.2023, dissolving the marriage with the respondent herein under Section 10 A of Divorce Act.

2. The appellant is the wife of the respondent. Their marriage was on 26.10.2014. Since May 2018, they were residing separately as marital relationship got strained. There were several litigations between the parties before various courts. All these disputes were settled in Mediation and an agreement incorporating the terms of settlement was arrived at between the parties on 18.3.2022. As per the terms of settlement, the respondent agreed to pay a sum of Rs.16 Lakhs to the appellant herein. The Guardianship and permanent custody of their child was handed over to the appellant as per the mediation agreement. The respondent agreed to pay a sum of Rs.50,000/-towards full and final settlement of maintenance due to the child. They have also agreed to dissolve their marriage on mutual consent.

3. As per the terms of mediation agreement, a joint petition for divorce was filed as O.P. No. 906 of 2022 on 1.4.2022. When the OP was taken up after the waiting period of six months, the appellant filed a memo on 28.11.2022 withdrawing her consent for divorce. The respondent filed I.A. No.8086/2022 praying for allowing the original petition on accepting the Demand Draft in the name of appellant's father. He also filed I.A. No.3/2023 for a direction to the appellant to accept the demand draft for Rs.10 Lakhs drawn in favour of her father. Out of the total sum of Rs.16.50 Lakhs, agreed to be paid to the appellant, Rs.6,50,000/-was already paid and for the balance amount of Rs.1,00,000/, a Demand Draft was taken in favour of the father of the appellant as per the terms of settlement and produced the Demand Draft along with I.A. No.3/2023.

4. When the above I.As along with the O.P. came up for consideration of the Family Court, the appellant strongly opposed the applications and the original petition on the ground that the mediation agreement was executed without her free consent and will and that she is not willing to terminate the marriage with the respondent. She also sought for permission to deposit Rs.6.5 Lakhs already received from the respondent.

5. In spite of the fact that the appellant has impounded her consent for the dissolution of marriage on mutual consent, the Family Court, relying upon the decision of this Court in Benny v. Mini [2021 (2) KLJ 190], allowed the I.As. filed by the respondent as well as the original petition and passed a decree, dissolving the marriage. Aggrieved by the above judgment, the wife preferred this appeal raising various grounds.

6. It was contended on behalf of the appellant that she had signed in the mediation agreement without her free will and also that she is not willing for a divorce by mutual consent. According to her, a sum of Rs. 50,000/-agreed to be paid towards maintenance of the child is inadequate and against the mutual understanding between the parties.

7. In the connected O.P No.2446 of 2020, she had filed an application for permission to return Rs.6.5 Lakhs received from the respondent. The Family Court was not justified in allowing I.A.No.3 of 2023 directing the appellant to receive Rs.10 Lakhs, drawn in favour of her father. It is also contended that the decision of this Court in Jayaraj R. v. Kaya G. Nair [2023 KHC 361] permits the parties to withdraw their consent to divorce at any time before passing the decree. In the light of the above grounds, the appellant prayed for setting aside the impugned judgment passed by the Family Court.

8. On the other hand, the learned counsel for the respondent would argue that after settling all the pending disputes before the Mediation, the parties entered into mediation agreement and the respondent performed part of his obligation and hence the appellant is not justified in withdrawin