UMESH SONI Vs. KIRAN SONI

JUDGEMENT

(1.) Appellant has filed this first appeal under Sec. 28 of the Hindu Marriage Act, 1955 read with Sec. 19 of the Family Courts Act, 1984 against judgment and decree dtd. 15/4/2024 passed by District Court Mauganj, District-Rewa (MP) in RCSHM No.77/2023. By impugned judgment and decree, petition filed by appellant and respondent under Sec. 13-B of the Hindu Marriage Act, 1955 was dismissed.

(2.) Learned counsel appearing for the appellant submitted that marriage of appellant and respondent was solemnized on 15/5/2011 at village-Deora, District-Rewa as per Hindu rites and rituals. One son and one daughter were born out of wedlock. After some time of marriage, marital dispute between the parties occurred and they were not able to reconcile with each other. Appellant filed an application for divorce under Sec. 13(1) of the Act of 1955. After litigating for three years, parties decided to give divorce to each other by mutual consent. Petition under Sec. 13(1) was withdrawn on 21/7/2023. Application for execution of order passed under Sec. 125 of the Cr.P.C. was also withdrawn by respondent vide order dtd. 21/7/2023. Appellant and respondent filed a joint petition under Sec. 13-B of the Hindu Marriage Act, 1955. An amount of Rs.44,000.00 was paid by appellant to respondent. Preliminary evidence was recorded and thereafter, case was fixed for second motion on 27/1/2024. Respondent in second motion took a U-turn and withdrew her consent. She made statement that she want to live along with appellant. In these circumstances, petition filed under Sec. 13-B was dismissed.

(3.) Learned counsel appearing for the appellant submitted that relationship between the parties had deteriorated beyond repair. Respondent had done second marriage. Amount of Rs.39,000.00 was paid on 21/7/2023 towards maintenance and Rs.44,000.00 was paid as permanent alimony on 26/7/2023. Appellant returned all Stridhan and other articles received by him in marriage. Respondent played fraud taking U-turn and withdrawing her consent for divorce by mutual consent. Learned counsel for appellant relied upon the judgment passed by Delhi High Court in case of Rajat Gupta Vs. Rupali Gupta reported in 2018 SCC Online Delhi 9005. In said case, it was held that party cannot unilaterally withdraw its consent and same would amount to breach of undertaking made before the Court of law resulting in civil contempt. Consent has to be withdrawn on just and reasonable ground and other party must not suffer prejudice. Consent can be unilaterally withdrawn only in exceptional cases and on reasonable ground. In view of aforesaid judgment, counsel for the appellant made a prayer for setting aside of impugned judgment and decree and to dissolve marriage. He further relied upon the judgement and decree passed by Bombay High Court in case of Mr. Prakash Alumal Kalandari Vs. Jahnavi Prakash Kalandari reported in AIR 2011 Bombay 119. In said case, a distinction has been drawn in case where a petition is filed under Sec. 13-B simpliciter and in cases where initially petition was filed under Sec. 9 or 13 and during pendency of said case, party decided to file petition for divorce by mutual consent. In cases of second category, party cannot be permitted to unilaterally withdraw the consent if other party has acted upon the consent terms either wholly or in part to his detriment. In second category of cases, Court has to be satisfied that there is sufficient, good and just cause for allowing party to withdraw consent, lest, it results in permitting the party to approbate and reprobate. Court is also required to see that other party does not suffer prejudice which is irreversible, due withdrawal of the consent. If two requirements is not satisfied, Court should loath to entertain prayer of the party to unilaterally withdrawn his/her consent.