Allahabad HC had held that the appeal even against a consent decree under such facts and circumstances of the case, where the consent itself is disputed and no inquiry has been conducted by the court below is maintainable, subject to objection on appearance by the other side.
The court was hearing a matter where it was alleged by appellant-wife that her signature on divorce petition was obtained by coercion. The wife was confined in the house of the husband and thus taking undue advantage of such confinement her signatures were obtained to get the divorce.
As the law was well settled that a decree passed by consent cannot be challenged by way of appeal. The Family Court could not have passed the decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 without the second motion and that too before expiry of six months from the first motion.
The petition filed under Section 13-B of the Hindu Marriage Act, 1955 came up for consideration as fixed by the Court, after six months i.e. on 11.1.2018. On the said date, both the husband and the wife appeared before the Court. None of the parties in the meantime either withdrew the petition nor the consent for divorce either orally or by moving any application. They filed another joint affidavit may be for initiating the second motion on 11.1.2018 acknowledging the earlier facts and that the mediation between them has failed. The Court in view of the fact that the marriage between the parties was solemnised on 30.5.2015 and they were living separately since 15.3.2016 with no issue of the wedlock, after recording its satisfaction that the petition is bonafide, passed the decree of dissolution of marriage by mutual consent.
A decree of divorce by mutual consent can only be passed if all essential ingredients contained in Section 13-B of the Hindu Marriage Act, 1955 are satisfied to the satisfaction of the Court.
In the case of Smt. Sureshta Devi Vs. Om Prakash (1991) 2 SCC 25 it has been laid down that on the joint motion of the parties to grant divorce by mutual consent the court is supposed to make an inquiry, hear and examine both the parties to ascertain that the averments made in the divorce petition are true and that the consent of the parties has not been obtained by force, fraud or undue influence.
Section 23(1)(bb) of the Hindu Marriage Act, 1955 also casts an obligation upon the courts in the matter of divorce by mutual consent to satisfy itself that the consent has not been obtained by force, fraud or undue influence. Thus, the Court is obliged to make requisite inquiry in the matter before proceeding to pass a decree of divorce by mutual consent.
It means that for a decree of divorce by mutual consent joint petition is mandatory and that the second motion has to be made by the parties after six months but before expiry of eighteen months of the first motion petition and that the parties are free to withdraw the petition anytime before the passing of the decree. The decree has to be passed after making due inquiry as to the genuineness and bonafide of the parties to the petition.
Section 28 of the Hindu Marriage Act, 1955 which permitted filing of appeal against the decrees and orders passed under the Act placed no rider on filing appeal even against a consent decree. It permitted appeal against all decrees made by the Court in any proceedings under the Act, except those relating to award of costs. Thus, by necessary implication, even consent or compromise decree, if passed under the Hindu Marriage Act, 1955 were open to appeal.
This is also the view taken by the Punjab High Court in the case of Smt. Krishna Khetarpal Vs. Satish Lal AIR 1987 Punjab & Haryana 191 and Charanjit Singh Mann Vs. Neelam Maan AIR 2006 Punjab and Haryana 201 and it has been held that against the decree of divorce by mutual consent appeal is maintainable under Section 28 of the Hindu Marriage Act, 1955.
In view of the above, normally a consent decree or order cannot be assailed by way of appeal but where the consent itself is disputed and is not said to be genuine, bonafide or free the things would be quite different as has been pointed out in the decision of Sushama by the Bombay High Court and it becomes the solemn duty of the Court to hold an inquiry in this respect before proceeding to pass a decree of divorce. This has not been done by the court below in the present case and it has recorded its satisfaction without conducting any such inquiry.
The bench in this case of the opinion that the appeal even against a consent decree under such facts and circumstances of the case, where the consent itself is disputed and no inquiry has been conducted by the court below is maintainable, subject to objection on appearance by the other side.
HIGH COURT OF JUDICATURE AT ALLAHABAD
Order reserved on 04.04.2018
Order delivered on 06.04.2018
Case :- FIRST APPEAL No. – 227 of 2018
Appellant :- Smt. Pooja
Respondent :- Vijay Chaitanya
Counsel for Appellant :- Shiv Bahadur Singh, Anjani Kumar Dubey
Hon’ble Pankaj Mithal,J.
Hon’ble Rajiv Joshi,J.
Full Judgment here: