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Judgments of Supreme Court of India and High Courts

Smt. Devayani Devendra … vs Mr. Devendra Madhavrao … on 5 July, 2019

Sherla V.

fca.147.2018_24.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.147 OF 2018
with
CIVIL APPLICATION NO.167 OF 2018

Devayani Devendra Suryavanshi … Appellant
Vs
Devendra Madhavrao Suryavanshi … Respondent

Mr.Tejas Hilage for the Appellant

Mr.Satyajeet Shirke i/b J.J. Bardeskar for the Respondent

CORAM: AKIL KURESHI
S.J. KATHAWALLA, JJ.

DATED: JULY 5, 2019

P.C.:

1. This appeal is filed by the wife challenging the judgment and

order dated 11.9.2016 passed by the Family Court, Kolhapur, in

Petition No.F-148 of 2016. The brief facts are as under:

The appellant-wife and the respondent-husband got married

on 28.3.2010. However, on or around 15.3.2012, they separated.

Multiple family disputes reached the Courts. Both the sides

decided to put an end to the marriage through mutual consent.

Therefore, a mutual consent divorce petition came to be filed

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before the Family Court, Kolhapur. Consent terms dated 7.11.2016

were presented before the Family Court. These consent terms

were duly signed by both the sides. The consent terms envisaged

the husband paying a total sum of Rs.11 lakhs to the wife by way

of full and final monetary settlement. Based on these consent

terms and the joint petition for divorce, the Family Court granted a

decree of dissolution of marriage by the impugned judgment and

order dated 11.9.2017.

2. In between, the wife filed an application at exhibit 9 in

petition No.F-148 of 2016 on 14.2.2017 and sought to resile from

her consent, principally on the ground that her consent was

obtained under force and coercion. In the meantime, the husband

had already paid a sum of Rs.8 lakhs directly to the wife and

deposited a further sum of Rs.3 lakhs to comprise the total sum of

Rs.11 lakhs as per the agreed terms before the Family C ourt. The

Family Court, Kolhapur passed an order on 4.7.2017, the operative

portion of which reads as under:

“ORDER

1. Application Exh. 9 is hereby rejected.

2. If petitioner No.2 does not intend to appear for second
motion then she is directed to deposit an amount of

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Rs.8,00,000/- (Rs.Eight lakhs only) in this court within the
period of fifteen days from the date of this order.”

The Family Court thereafter proceeded to pass the main

judgement and order dated 11.9.2017 and dissolved the

marriage as per the original petition and the consent terms

jointly presented by the parties. In this background, the wife

has challenged the said order before us in the present

Appeal.

3. Having heard the learned Counsel for the parties and having

perused the documents on record, we do not find that the

appellant has made out any ground for interference. The main

ground for withdrawing the consent, as noted, was of coercion and

undue influence. Elaborating this ground, the learned Counsel for

the appellant submitted that the wife was forced by her mother-in-

law and sister-in-law to sign the consent terms. This averment

itself is not possible to be accepted. Firstly, the record would

suggest that the husband and the wife were residing separately

since March, 2012. The Family Court Petition was presented in

2014 and the consent terms in 2016. Obviously, therefore, the wife

was not residing with the in-laws and the scope for exerting any

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pressure would, therefore, not be present. The wife has not made

any further specific averment with respect to the alleged force or

coercion.

4. This apart, the wife received the sum of Rs.8 lakhs under the

consent terms. The Family Court, therefore, had before disposing

off her application at exhibit 9, offered her to hear further provided

she agreed to deposit the said sum which she had received under

the consent terms. She did not deposit the amount. It was

thereupon that the Family Court rejected her application at exhibit

9.

5. In the facts of the case, we do not find that the Family Court

has committed any error. The question whether once a party files

a divorce petition by mutual consent, later on during the cool-off

period before the decree, can withdraw the consent or not is not

necessary for us to enter into. This is so for the reason that the

wife having received substantial benefit under the consent terms, if

desirous of withdrawing her consent, had to restore to the original

position and return the benefit she had received. She having

refused to do so, the Family Court correctly did not permit her to

resile from the consent.

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6. We are informed that the wife had refused to receive the

remaining sum of Rs.3 lakhs out of total of Rs.11 lakhs payable

under the consent terms. The husband has deposited the stated

sum before the Family Court. Under the circumstances, while

dismissing this appeal, we permit the wife to withdraw the said

sum with accrued interest, if any.

7. Subject to the above observations, the Family Court Appeal

is dismissed.

8. In view of the dismissal of the Appeal itself, Civil Application

No.167 of 2018 also stands dismissed.

(S.J. KATHAWALLA, J.) (AKIL KURESHI, J.)

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