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Appeal Against A Mutual Consent Divorce Not Maintainable : Delhi High Court [READ ORDER]

Mutual Consent Divorce Not Maintainable
A Division Bench of Justices Rajiv Sahai Endlaw and Asha Menon of the Delhi High Court has on June 03, 2020, in the matter Anshu Malhotra vs Mukesh Malhotra, held that an appeal against a consent decree of dissolution of marriage is not maintainable and remedy before an aggrieved party in case of allegations of fraud and misrepresentation, etc. is by applying to the same court which had granted consent decree. 

 

Background of the case: 

An appeal under Section 28 of the Hindu Marriage Act, 1955 (HMA) read with Section 19 of the Family Courts Act, 1984, was filed against the order and decree dated November 19, 2019, of the Judge, Family Court, of dissolution of marriage of the appellant-wife with the respondent-husband under Section 13B of the HMA. Section 13B makes the provision of divorce by mutual consent of both the parties. 

The appellant-wife had contended that the order and decree of the Family Judge were vitiated in as much as the consent of her to the dissolution of her marriage with the respondent-husband was obtained during the illness of her and was thus not of the own volition of her and in fact, there was no consent of her or mutual consent for dissolution of marriage with the respondent-husband. It was further contended that the parties, before filing the petition under Section 13B(1) of the HMA, were not even living separately for the statutory mandatory period of one year. 

The appeal being against a decree of dissolution of marriage by mutual consent, the Court had straightaway enquired from the counsel for the appellant-wife, as to how the appeal was maintainable as an appeal against a consent decree is not available in law. Attention in this regard was also drawn to Section 96(3) of the Code of Civil Procedure, 1908 (CPC) which provides that no appeal shall lie from a decree passed by the court with the consent of the parties. The Court had also drawn the attention of the counsel to Section 19(2) of the Family Courts Act, which bars any appeal from a decree or order passed by the Family Court with the consent of the parties. 

The Counsel for the appellant had referred, Krishna Khetarpal Vs. Satish Lal; [AIR 1987 P&H 191] and Charanjit Singh Vs. Neelam Maan; [AIR 2006 P&H 201], where it has been held that an appeal under Section 28 of the HMA is maintainable against a decree of dissolution of marriage by mutual consent. 

In Krishna Khetarpal it was held, 

1. A right of appeal is a creature of a statute and is a substantive right; 

2. Section 28(1) of the HMA provides the right of appeal against all decrees made by the court in any proceedings under the Act – these decrees may be consent decrees or otherwise; 

3. Decree of divorce by mutual consent under Section 13B is also appealable under Section 28 – the scheme of the HMA is not averse to the passing of consent decrees (considerations under Section 23 apart) and the appeal against the said decree is maintainable by either party, as a matter of right; 

4. In contrast, the appeal under Section 96 of the CPC is on a different footing; 

5. The bar to an appeal against a consent decree is based on the broad principle of estoppel; 

6. In the passing of consent decree under Order 23 CPC, the court plays no role of adjudicating and it is the parties themselves who do justice to themselves by consent and the court puts a seal thereon as a decision of its own; 

7. It is for this reason that the Legislature in its wisdom considered it advisable not to provide a re-hearing of the matter in appeal; 

8. An appeal against the decree of divorce by mutual consent, distinctively, is not merely on the consent of the parties, for the matrimonial court is involved in the decision making so that it accords not only with the provisions of Section 13B of the HMA but also Section 23 of the said Act; 

9. Thus a decree of divorce by mutual consent is not merely on mutuality of the consenting parties but the court's involvement in the decision making is inextricably a part of the decree and since the possibility of an error, legal or factual, entering in the decision making cannot be ruled out, an appeal under Section 28 of the Act has been provided; and, 

10. The matrimonial court under Section 23(1)(bb) of the HMA, before granting a decree for divorce on mutual consent, has to ensure that consent has not been obtained by force, fraud, or undue influence. 

Section 23 of the Hindu Marriage Act, 1955: Decree in proceedings. -

(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that-

(a)-(b);

(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence;

(c)-(e);

the court shall decree such relief accordingly.

Respectfully differentiating the dicta of Punjab and Haryana High Court, the Delhi High Court held that, 

“It is not as if the court, in a civil suit, when presented with compromise terms under Order 23 Rule 3 CPC seeking a decree to be passed in terms thereof, is bound to pass a decree as sought. Order 23 Rule 3 CPC also provides that “where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by a lawful agreement or compromise in writing and signed by the parties….” shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith. For the court to be satisfied that a suit had been adjusted wholly or in part by a lawful agreement, the court has to necessarily satisfy itself that the compromise or agreement is of the own volition of the parties and the consent of either of the parties thereto is not under coercion or misrepresentation and the said agreement or compromise is not unlawful within the meaning of Section 23 of the Contracts Act, 1872. It is thus not as if the position under Order 23 Rule 3 CPC is any different from that under Section 13B or Section 23 of the HMA.”

 

The Counsel of the appellant had also mentioned Sushama Vs. Pramod; [AIR 2009 Bom 111], Jyoti Vs. Darshan Nirmal Jain; [AIR 2013 Guj 218 (DB)], Sumesh Kumar Gupta Vs. Sapna Gupta; [2013 SCC Online P&H 26608 (DB)], Pooja Vs. Vijay Chaitanya, [AIR 2018 All 207 (DB)], Tiji Daniel Vs. Roy Panamkoodan; [2018 SCC Online Ker 4145 (DB)], S. Rajkannu vs. R. Shanmugapriya; [AIR 2016 Mad. 42], but the Court after pursuing each judgment noted that in each of the cases, decree for divorce by mutual consent had been passed in violation of the procedure provided by law and which violation was evident from the record before the Family Court and qua which no proper inquiry had been done by the Family Court. Regarding the present case, the Court observed that the present case did not on the face of it contain anything wherefrom it could be said in the appeal that the Family Court erred in passing a decree for divorce by mutual consent on the material before it on record. 

Regarding the Counsel’s duty, the Court observed that the counsel for the appellant had not shown any error in the record of Family Court order and had not chosen to annex to the appeal the petition under Section 13B(2) of the HMA on which the statements of the parties to mutual consent were recorded and order/judgment made. In this regard, the Court held that there was nothing on the basis of which the Family Court should have refused to pass a decree for dissolution of marriage by mutual consent. 

The Court also expressed its inability to hold a decree for divorce by mutual consent of a Family Court to be standing on any different footing than a consent decree of a Civil Court under Order 23 Rule 3 of the CPC. 

Regarding the remedies available to the parties, the Court relied on Supreme Court judgment in Pushpa Devi Bhagat vs. Rajinder Singh; [(2006) 5 SCC 566], where regarding Order 23 Rule 3 of CPC, the Apex Court had held that, 

The only remedy available to a party to a consent decree to avoid such consent decree is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but a contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made.”

Finding the appeal to be not maintainable, the Court dismissed the appeal granting liberty to the appellant to take steps in accordance with the law, if entitled thereto. 

The full bench of the Bombay High Court in the matter of Romila Jaidev Shroff v. Jaidev Rajnikant Shroff; [AIR 2000 Bom 356], held that the Family Courts Act, 1984 was “All India Statute” and the judgment of the High Court of the Country in relation to an “All India Statute” should ordinarily be respected and followed. In the present case, the Division Bench of Delhi High Court has respectfully held the view of the Division Bench of Punjab and Haryana High Court, in this regard, the controversy can be settled by the Supreme Court only. 

 

 

 [READ ORDER]


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