The Bombay high court (HC) has held that neither litigating spouse can backtrack on a divorce agreement made by mutual consent if the other party has abided by the terms.

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A division bench of justices AM Khanwilkar and MR Bhatkar made the observation while hearing an appeal filed by a Pune-based couple. The two, married since 1993, decided to live separately in 2006. Initially, it was the wife who petitioned for divorce on the grounds of cruelty. She also filed other complaints against her husband under Section 498-A (harassment) of the IPC.

On October 6, 2008, however, the warring couple agreed on a divorce by mutual consent. The wife withdrew the criminal complaints she had filed against her husband, relinquished her right for alimony, and also agreed to transfer the property in her name to her husband. While the custody of their two children was given to her, she agreed to let him have access to them on weekends and during school vacations.

The husband backtracked at a later stage, refusing to seek a divorce by mutual consent. He said his wife had faulted on granting him access to their children. However, the wife informed the court that he failed to meet the children as he was in prison. Moreover, the children, too, did not want to meet him. Holding the withdrawal of consent terms by the husband as incorrect, the family court in Pune granted the divorce decree on March 31, 2009.

The HC bench agreed with the family court’s decision. “The wife has performed her obligations. She waived the claim for maintenance and streedhan. She also withdrew the civil and criminal actions initiated by her against the appellant [the husband]. Even for this reason, the appellant cannot be permitted to withdraw his consent,” the court said.

However, the bench reserved the remedy of the parties to resort to appropriate proceedings for effectuating the terms agreed upon.