A joint plea that was filed, later unilaterally withdrawn by one of the parties. What can be done? The Kerala High Court clarified this matter.
Facts
A petition has filed by the husband which sought a divorce. This went for a mediation session where it was contended that the petition that would be filed would be a joint petition. The agreement which was the outcome of the mediation also stated that the husband would withdraw his petition.
In addition to this, the custody of the two children of the couple would be with the wife. The husband also had to pay alimony of Rs 10 lakh to the wife. As a part of the agreement, the husband paid Rs 2 lakh to the wife on filing the joint petition. The other Rs 8 lakh would be paid on the day that the joint petition would be heard.
This would be after a statutory period of 6 months. On the date that the petition was posted, the husband paid remaining Rs 8 lakh to the wife. Affidavits had been filed by both sides expressing consent to divorce. The Court had asked the couple to go for counselling which was refused by both parties.
Six weeks before the judgement was given, the wife withdrew her consent by filing an application. The court then ordered a counselling session where the wife stuck to her decision. The family court, therefore, dismissed the petition for divorce.
Order of the Court
This act of the wife was declared “unsustainable by law” by the Court.
The Division bench at the Kerala High Court comprising of Justices A M Muhammed Mustaque and C S Dias said this by taking into consideration the fact that the husband had fulfilled all his obligations.
The Court stated that “unilateral withdrawal of consent by aa spouse from a joint petition filed for divorce while the other party has performed his/her obligation under the agreement is unsustainable in law.”
The husband having fulfilled all his obligations should be granted the divorce. The Court passed the decree of divorce while stating that “once the parties agree to file a joint petition pursuant to an agreement or a compromise in pending proceedings, then the parties are stopped from withdrawing from the agreement.”
Here the husband had completed all his obligation and paid the sum as demanded by the wife in accordance with the agreement, therefore the wife’s withdrawal does not hold any merit.
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