BENNY Vs. MINI

JUDGEMENT

(1.) Is it permissible to withdraw one's consent in a petition filed for dissolution of marriage by mutual consent, filed pursuant to a compromise, is the point that emanates for consideration in the appeal?

(2.) The appellant (husband) and the respondent (wife) are Christians. They were married on 10.9.2003. Two children, Anliya and Blessin, were born in the wedlock. The marriage ran into rough weather, forcing the respondent to file O.P.No.1133/2010, seeking a decree for return of money and gold ornaments and M.C 349/2010, seeking an order for maintenance, before the Family Court, Thrissur. The appellant filed O.P. 433/2010 before the same court, seeking a decree of divorce. The cases were later transferred to the Family Court, Irinjalakuda. The parties were referred to mediation and they settled all the disputes arising out of the marriage by executing a memorandum of settlement. The couple, inter alia, agreed that custody of the children would be with the respondent; that the appellant would pay a compensation of Rs.10,00,000/- to the respondent; that all the pending cases would be withdrawn and that they would file a joint petition under Section 10A of the Divorce Act, 1869, to dissolve their marriage by mutual consent. The memorandum of settlement was recorded by the court and all the cases were dismissed as withdrawn. The parties filed O.P.669/2016. As a condition precedent, on the date of filing of the joint petition, the appellant paid an amount of Rs.2,00,000/- to the respondent. The balance amount of Rs.8,00,000/- was agreed to be paid on the date the joint petition was posted for inquiry after the statutory waiting period of six months. On 20.2.2017, the date of second motion, the appellant and the respondent filed their respective proof affidavits in lieu of chief-examination. The appellant paid the respondent the balance amount of Rs.8,00,000/-, which was acknowledged by the respondent. The Family Court referred the parties for counselling, and thereafter, conducted the inquiry. Both parties expressed their consent for divorce in unequivocal terms. The case was posted for judgment to 20.4.2017.

(3.) On 9.3.2017, the respondent filed I.A Nos. 573/2017 and 574/2017, seeking to withdraw the proof affidavit and to withdraw her consent. She averred in the affidavits in support of the applications that she was withdrawing her consent considering the welfare and future of the children. The appellant filed counter affidavits to the applications. The applications were taken up for consideration on 11.7.2017. The parties were again referred for counselling. The respondent stuck to her stand. Consequently, the Family Court by the impugned common order allowed the applications and dismissed the original petition.