Case Note & Summary
The appeal arose from a divorce petition filed by the wife on the ground of cruelty. During pendency, the parties executed consent terms on 6 October 2008 for divorce by mutual consent, which included arrangements for custody of children, maintenance, and waiver of claims. The husband later filed an application to withdraw his consent, alleging that his consent was not free. The Family Court, after hearing, granted divorce by mutual consent, holding that the consent was voluntary and the withdrawal was not bona fide. The husband appealed. The High Court examined the scope of Section 13B of the Hindu Marriage Act, 1955, and held that the power to withdraw consent is not absolute; the court must be satisfied that the consent was free and voluntary. Since the Family Court had already recorded satisfaction, the decree was valid. However, regarding custody, the High Court set aside the Family Court's order and remanded the matter for fresh consideration, as the consent terms on custody were part of the divorce decree but the father's withdrawal of consent indicated a change in circumstances. The appeal was partly allowed, with the divorce decree upheld but custody issues remanded.
Headnote
A) Family Law - Divorce by Mutual Consent - Withdrawal of Consent - Section 13B of Hindu Marriage Act, 1955 - The husband and wife filed consent terms for divorce by mutual consent, but the husband later sought to withdraw his consent. The Family Court granted divorce holding that the consent was free and voluntary and the withdrawal was not bona fide. The High Court upheld the decree, observing that the power to withdraw consent is not absolute and must be exercised before the court is satisfied about the consent; once the court is satisfied, it can proceed to grant divorce. (Paras 1-10) B) Family Law - Custody of Children - Access Rights - Section 26 of Hindu Marriage Act, 1955 - The consent terms provided for custody of children with the mother and access to the father. The High Court directed the Family Court to decide the issue of custody and access afresh, as the consent terms were part of the divorce decree but the father's withdrawal of consent raised questions about the continued validity of those terms. (Paras 11-12)
Issue of Consideration
Whether the appellant/husband could unilaterally withdraw his consent to divorce by mutual consent after filing consent terms and before the decree was passed, and whether the Family Court was justified in granting divorce despite such withdrawal.
Final Decision
The High Court partly allowed the appeal. It upheld the decree of divorce by mutual consent granted by the Family Court. However, it set aside the directions regarding custody of children and access and remanded the matter to the Family Court for fresh consideration of custody and access issues.
Law Points
- Consent to divorce by mutual consent must be free and voluntary
- Withdrawal of consent before decree is permissible only if consent was not free or was obtained by fraud
- undue influence or coercion
- Court must be satisfied that consent is genuine and not withdrawn for ulterior motives
