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Divorce: husband can’t withdraw consent once given

New Delhi, June 21
Adding a new twist to consensual divorces, the Delhi High Court has ruled that no husband can unilaterally withdraw consent for such a divorce which he had given to settle dowry complaint cases instituted against him by his erstwhile wife.

“Unless it is shown by one party that his consent was as a result of force, fraud or undue influence, consent given for grant of divorce by mutual consent cannot be unilaterally withdrawn,” Mr Justice Mukul Mudgal has said.

A woman had appealed against the verdict of an Additional District Judge allowing the application of the husband to withdraw the consent for a decree of divorce by mutual consent.

The husband, Neeraj Jain, had moved the application for withdrawal of consent after availing all benefits and enjoyed the fruits of settlement reached with the wife, which included she would not get the ‘istridhan’ and maintenance of her minor girl child.

As part of the compromise, the wife was made to withdraw the complaint of dowry harassment (Section 498-A) and Section-406 (criminal breach of trust) of the Indian Penal Code that she had filed against him in the Anti-Dowry Cell.

Setting aside the verdict of the Additional District Judge, Mr Justice Mudgal said: “It is evident that the withdrawal of the consent by husband is tainted with mala fide, baseless and is unjust. Thus, it is a fit case where a decree of divorce by way of mutual consent should have been granted,” the court said.

The court had proceeded ex parte in the matter as it was informed that the husband was involved in two cases of cheating and customs violation at Ludhiana in Punjab and while on transit remand in judicial custody, he escaped and till now was untraceable.

In spite of unilaterally attempting to withdraw his consent, the absconding husband remarried and had a child from the second marriage, which was held to be “bigamous” by the high court.

While allowing the appeal of the woman, Mr Justice Mudgal observed that “this court cannot be a hapless spectator to the duplicity of the respondent-husband who induced the hapless wife to forgo the maintenance claims of not only herself and her daughter but also duped her into agreeing to the withdrawal of the criminal complaints in the hope of starting her life afresh”.

“In the present case, if the withdrawal of the consent by the husband is upheld, it will lead to an anomalous situation where the wife, who is law-abiding, is left high and dry without recourse to any remedy and saddled with a dead marriage whereas the husband who has resorted to fraud and misrepresentation enjoys his freedom and enjoys another marriage”, the court said.

“The husband in spite of forsaking his mutual consent for divorce by remarrying has on his own showing committed a crime of bigamy under Section 494 of the IPC and is enjoying his life afresh whereas the wife is tethered to a dead marriage,” Mr Justice Mudgal observed. — PTI