Consent for mutual divorce must remain until the petition is disposed of; withdrawal at any time before that invalidates the petition.

Devan Ramachandran , J.

The appellant filed OP(Div)No.1266/2023 along with the respondent, invoking the provisions of Section 10A of the Indian Divorce Act (for short 'the Act') seeking divorce on mutual consent; but alleges that the respondent, thereafter, withdrew without cause, leading to the dismissal of the petition by the learned Family Court, which she contends is illegal and unlawful.

2. Sri.Sreehari Indukaladharan – appearing for the appellant, pointed out that all differences of opinion between the parties had been settled between them through two different Memorandums of Settlement; but conceded that these have not obtained the approval of any Court, since they have neither been so produced, nor any declaration based on the same sought for. He nevertheless argued that, when such settlements bind the parties, it was impermissible for the respondent to have withdrawn from the consent he had given in filing the Original Petition; and consequently that the learned Family Court had erred in approving it through the impugned judgment. He prayed that, therefore, this appeal be allowed and the learned Family Court be directed to allow OP(Div) No.1266/2023, as prayed by the parties, leading to their divorce through mutual consent.

3. In response, Smt.Sayujya Radhakrishnan – learned counsel for the respondent, submitted that, though her client was fully willing to abide by the terms of settlement between the parties – even though it has not been approved by any Court yet – it is the appellant who withdrew from her obligations, not only by denying access of their child to him, but also in filing further cases, including under Section 498A of the Indian Penal Code. She argued that, when the disputes between the parties thus subsisted even while the Original Petition before the learned Family Court was pending; and when it is further expressly admitted by the appellant that three other Original Petitions, namely OP Nos.44/2024, 83/2024 and 319/2024 - all filed by her, are also still pending, her client had no other option but to withdraw his consent, thus leading to the inevitable dismissal of the Original Petition. She concluded saying that, to exacerbate the situation, the appellant has now filed a fresh Maintenance Case, namely MC No.47/2025 before the same learned Family Court and that the same is also pending.

4. There can be no doubt that it is in the scenario where the parties are in full consent that they obtain the statutory right of filing a petition seeking divorce through mutual consent. This consent has to be free, voluntary and obtained without any vitiating factors being involved; and must continue from the filing of the case, until the matter is disposed of.

5. In this case, the learned Family Court has held that the respondent did not withdraw his consent, recorded in the Original Petition, until the matter was listed for judgment, which is to say, even at the time when the hearing was conducted. It, however, records that, when the respondent withdrew his consent thereafter, it had no other option but to dismiss the Original Petition because, a decree for divorce through mutual consent could never have been granted in such scenario. 6. We do not propose to evaluate or examine the rival contentions of the parties qua their assertions of rival imputations of the other acting in violation of the terms of the alleged agreements between them. This is because, the said agreements have not transmuted itself into decrees or judgments, nor are they produced before the learned Family Court - at least, it does not appear to be from the records, admittedly.

7. In such circumstances, when the respondent maintains that the terms