Delhi High Court
Anshu Malhotra vs Mukesh Malhotra on 3 June, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 3rd June, 2020
+ MAT.APP. (F.C.) 86/2020
ANSHU MALHOTRA .....Appellant
Through: Mr. Amar Nath, Advocate
versus
MUKESH MALHOTRA .....Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
%
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
CM Nos. 11774/2020 & 11775/2020 (both for exemption)
1. Allowed, subject to just exceptions and as per extant rules.
2. The applications are disposed of.
MAT.APP. (F.C.) 86/2020 & CM No.11776/2020 (for condonation of
delay of 25 days in filing the appeal)
3. This appeal under Section 28 of the Hindu Marriage Act, 1955
(HMA) read with Section 19 of the Family Courts Act, 1984 impugns the
order and decree dated 19th November, 2019 of the Judge, Family Court,
Shahdra District, of dissolution of marriage of the appellant with the
MAT. APP.(FC) No.86/2020 Page 1 of 22
respondent under Section 13B of the HMA.
4. It is the contention of the appellant that the said order and decree is
vitiated inasmuch as the consent of the appellant to dissolution of her
marriage with the respondent was obtained during the illness of the
appellant and is thus not of the own volition of the appellant and in fact
there was no consent of the appellant or mutual consent for dissolution of
marriage with the respondent. It is 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.
5. The appeal being against a decree of dissolution of marriage by
mutual consent, we have straightaway enquired from the counsel for the
appellant, how the appeal is maintainable inasmuch as an appeal against a
consent decree is not available in law. Attention in this regard is drawn to
Section 96(3) of the Code of Civil Procedure, 1908 (CPC) providing that no
appeal shall lie from a decree passed by the court with the consent of the
parties.
6. The counsel for the appellant states that in Krishna Khetarpal Vs.
Satish Lal AIR 1987 P&H 191 and Charanjit Singh Vs. Neelam Maan AIR
2006 P&H 201, 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.
7. We have however drawn attention of counsel for the appellant 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,
MAT. APP.(FC) No.86/2020 Page 2 of 22
and enquired, whether not the appeal is barred by the said provision. We
have further enquired, whether the judgments aforesaid of the Punjab and
Haryana High Court have dealt with the said provision of the Family Courts
Act.
8. The counsel for the appellant states that he has filed this appeal
without studying the full text of the judgments of the Punjab and Haryana
High Court aforesaid and is thus unable to state whether Section 19(2) of the
Family Courts Act is dealt with therein or not. He however states that from
the headnotes available with him it appears that Section 96 was noticed in
Krishna Khetrapal supra.
9. We have perused the judgments cited by the counsel for the
appellants. As far as Krishna Khetrapal supra is concerned, the Division
Bench of the P&H High Court therein was answering a reference for
determination of the question, whether an appeal under Section 28 of the
HMA is competent against a consent decree in the face of provisions of
Section 96(3) of the CPC. It was held, (i) a right of appeal is creature of a
statute and is a substantive right; (ii) 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; (iii)
decree of divorce by mutual consent under Section 13B is also appealable
under Section 28 - the scheme of the HMA is not averse to 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;
(iv) in contrast, the appeal under Section 96 of the CPC is on a different
footing; (v) the bar to an appeal against a consent decree is based on the
MAT. APP.(FC) No.86/2020 Page 3 of 22
broad principle of estopple; (vi) in passing of consent decree under Order 23
CPC, the court plays no role of justicing 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; (vii) 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; (viii) an appeal against the decree of divorce by mutual consent,
distinctively, is not merely on 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;
(ix) thus a decree of divorce by mutual consent is not merely on mutuality of
the consenting parties but the courts 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, (x) 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. Charanjeet Singh supra is also a judgment
of the Division Bench and merely follows Krishna Khetrapal supra and
does not add anything.
10. With respect to the aforesaid dicta of the Division Benches of the
Punjab & Haryana High Court, we may respectfully state 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
MAT. APP.(FC) No.86/2020 Page 4 of 22
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. However once the court is satisfied that the compromise arrived at is
lawful and has passed a decree, against such decree, Section 96(3) of the
CPC bars an appeal. We are therefore, with due respect to the Division
Benches of the High Court of Punjab and Haryana, of the opinion that the
distinction as carved out by the Punjab & Haryana High Court qua a decree
of dissolution of marriage by mutual consent vis-a-vis a suit before the civil
court, does not exist.
11. Though we have hereinabove stated our reasons for respectfully
disagreeing with the aforesaid judgments of the Division Benches of the
Punjab & Haryana High Court cited by the counsel for the appellant, but
would be failing in our duty if do not refer to:
A) Sushama Vs. Pramod AIR 2009 Bom 111. It was the
contention of the wife therein that her signatures on the petition
for mutual consent and accompanying affidavits were obtained
under false pretext and she was compelled to place her
MAT. APP.(FC) No.86/2020 Page 5 of 22
signatures upon it. It was also her contention that both the
parties were residing together and there was no separation for a
period of one year which is a mandatory requirement and the
same was evident from the documents on record. It was held
that the matrimonial court, from the said documents on record
which prima facie showed that the husband and wife were
residing at the same place, ought to have been put to an inquiry
and verified the said fact but had failed to do so and had
mechanically passed the order of dissolution of marriage. The
contention of the husband that the appeal was not maintainable
was negatived relying on Krishna Khetrapal supra and
Charanjeet Singh supra. However, Section 19(2) of the Family
Courts Act was not under consideration.
B) Jyoti Vs. Darshan Nirmal Jain AIR 2013 Guj 218 (DB),
holding that, (i) per Section 10 of the Family Courts Act, the
provisions of CPC apply to proceedings before a Family Court
but Section 20 thereof gives overriding effect to the provisions
of the Family Courts Act notwithstanding anything inconsistent
therewith contained in any other law for the time being in force;
(ii) thus, if a provision in CPC is inconsistent with the
provisions of the Family Courts Act, it will have no effect; (iii)
section 19 of the Family Courts Act is a complete code for
hearing of appeals from the final orders of the Family Courts
and it would not be possible to import provisions of CPC and
make the appeal maintainable if otherwise the same is not in
MAT. APP.(FC) No.86/2020 Page 6 of 22
terms of Section 19; (iv) in Neera Saxena Vs. Sanjeev Kumar
Saxena AIR 2000 All 277, a Division Bench of the Allahabad
High Court held that whether in fact fraud was practiced by the
husband on court in filing application in the name of the wife
was a question of fact which could be conveniently and
appropriately gone into by the original court itself and relegated
the appellant to the Family Court; (v) whatever the position
under the CPC, in view of the language used in Section 19(2) of
the Family Courts Act, no appeal would be maintainable
against a decree or order passed by the Family Courts with the
consent of the parties even if the party to such consent were to
contend that consent was obtained through force or fraud; (vi)
however if there was an error apparent on the record of the
Family Court and on the basis of the material before the Family
Court, no consent decree could have been passed and the
Family Court passed a consent decree solely on consent but not
on its own satisfaction of the required ingredients for passing
such judgment and decree, the appeal under Section 19(2)
would not be barred; and, (vii) a decree for mutual consent
under the provisions of the HMA is based not merely on
consent but also on the satisfaction accorded of the Judge,
Family Court and thus appeal under Section 19(2) is not barred.
It may be mentioned that in the facts of the case it was found to
be borne out from the record itself that the petition for divorce
by mutual consent was filed before the expiry of one year of
separation.
MAT. APP.(FC) No.86/2020 Page 7 of 22
C) In Sumesh Kumar Gupta Vs. Sapna Gupta 2013 SCC Online
P&H 26608 (DB) the appeal was preferred against the
dismissal of the petition for dissolution of marriage by mutual
consent. The appeal was held to be maintainable though on
merits was dismissed.
D) Pooja Vs. Vijay Chaitanya AIR 2018 All 207 (DB) again
holding Section 19(2) to be not a bar to an appeal against the
decree of dissolution of marriage by mutual consent.
E) Tiji Daniel Vs. Roy Panamkoodan 2018 SCC Online Ker 4145
(DB) also holding Section 19(2) of the Family Courts Act to be
not a bar to the maintainability of the appeal against a decree of
divorce by mutual consent. The dissolution of marriage by
mutual consent in this case was under Section 10A of the
Divorce Act, 1869 and it was found in the facts of the case that
decree for divorce by mutual consent was granted on first
motion itself and thus suffered from error of procedure.
F) S. Rajkannu vs. R. Shanmugapriya AIR 2016 Mad. 42,
relying on Sureshta Devi vs. Om Prakash AIR 1992 SC 1904
laying down that mere filing of the petition for dissolution of
marriage by mutual consent does not authorize the court to
make a decree for divorce and holding that the provisions of
Order 23 Rule 3 CPC are not applicable to a decree passed
under Section 13B HMA and thus a decree of dissolution under
Section 13B is appealable under Section 28 of the HMA. In this
MAT. APP.(FC) No.86/2020 Page 8 of 22
case also dissolution of marriage was ordered by the Family
Court without even the wife appearing in support of the petition
for dissolution of marriage by mutual consent.
12. It would thus appear that the view of the High Courts of Bombay,
Gujarat, Allahabad, Kerala and Madras is the same as that of the High Court
of Punjab & Haryana whose judgments are referred to by the counsel for the
appellant i.e. to the effect that an appeal under Section 19(1) of the Family
Courts Act lies against a decree for dissolution of marriage by mutual
consent and Section 19(2) does not bar such appeal. However it is also
obvious from the narrative of the various judgments aforesaid 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.
13. However the reason which has prevailed with the other High Courts
for holding the appeal to be maintainable i.e. of the Family Court passing a
decree for dissolution of marriage by mutual consent not merely on the basis
of consent of the parties but also on the basis of its satisfaction, we state
with all due respect, does not satisfy us. We say so because the same
requirement is to be found in Rule 3 of Order 23 CPC also as aforesaid and
qua which the law, as discussed hereinbelow, is clear, that no appeal lies
against a consent decree. We are therefore unable to hold a decree for
divorce by mutual consent of a Family Court to be standing on any different
footing then a consent decree of a Civil Court under Order 23 Rule 3 of the
CPC. We may in this context mention that the Rent Acts of various States
MAT. APP.(FC) No.86/2020 Page 9 of 22
also do not permit the Rent Controller to pass an order of eviction without
satisfying itself, of a ground for eviction as provided under the Act being
made out. However, under the said Acts also, it has been held that if from
the order of eviction, though with consent, it is obvious that the Controller
has satisfied himself/herself of a ground of eviction being made out, even if
on the basis of admission of the tenant, such consensual order of eviction
cannot be challenged. Reference in this regard may be made to K.K. Chari
Vs. R.M. Seshadri (1973) 1 SCC 761, Nagindas Ramdas Vs. Dalpatram
Ichharam alias Brijram (1974) 1 SCC 242, Roshan Lal Vs. Madanlal
(1975) 2 SCC 785, Nai Bahu Vs. Lala Ramnarayan (1978) 1 SCC 58 and,
Shivshankar Gurgar Vs. Dilip (2014) 2 SCC 465. It was held (i) an order of
eviction based on consent of the parties is not necessarily void if the
jurisdictional fact viz. a ground of eviction provided under the Act is shown
to have existed when the Controller made the order; (ii) satisfaction of the
Controller, which no doubt is a prerequisite for the order of eviction, need
not be by the manifestation borne out by a judicial finding; (iii) if at some
stage the court was called upon to apply its mind to the question and there
was sufficient material before it, before the parties invited it to pass an order
in terms of their agreement, it is possible to postulate that the court was
satisfied about the grounds on which the order of eviction was based; (iv) if
the tenant admits that the landlord is entitled to possession on one or other of
the statutory grounds mentioned in the Act, it is open to the court to act on
that admission and make an order for possession in favour of the landlord
without further inquiry; (v) if there was material before the court when it
passed the order of eviction by consent, from which it can be shown that the
court was satisfied about the requirement of the landlord being bona fide,
MAT. APP.(FC) No.86/2020 Page 10 of 22
such an order will not be a nullity even without the Rent Controller's
decision in favour of the landlord; (vi) admissions are by far the best proof
of judicial facts and can be made the foundation of the rights of the parties;
and (vii) it cannot be contended that the provisions of Order 23 Rule 3 of the
CPC cannot apply to eviction suits governed by the special statutes;
undoubtedly, a compromise of such suit is permissible under the provision
of law; if the court is satisfied on consideration of the terms of the
compromise that the agreement is lawful, as in any other suit, so in an
eviction suit, the court is bound to record the compromise and pass a decree
in accordance therewith, passing a decree for eviction on admission of the
requisite facts in a compromise. Once it is so, Section 96(3) of the CPC
would apply and appeal against such consent order would not be
maintainable. Thus, having considered the persuasive value of the
judgments aforesaid of the other High Courts, we are, with respect, unable
to agree with the judgments aforesaid of the other High Courts and do not
consider ourselves bound thereby.
14. Moreover, the impugned order in the present case does not on the face
of it contain anything wherefrom it can be said in appeal that the Family
Court erred in passing a decree for divorce by mutual consent on the
material before it on record. The impugned order comprises of two parts,
which are as under: -
Order dated 19.11.2019:
"Fresh petition received by assignment. It be
checked and registered.
MAT. APP.(FC) No.86/2020 Page 11 of 22
This is a petition of second motion for seeking
divorce by mutual consent u/s 13-B (2) of HMA.
The certified copies of the 1st motion and MOU
has already been filed. An application for waiver of
cooling period of 6 months already moved which is
allowed in view of the facts and circumstances mentioned
in the application.
The joint statement of both the petitioners is
recorded. Today, petitioner no.1 has given two DDs of
Rs.27,17,000/- to the petitioner no.2.
Vide separate order, this petition is allowed and
the marriage taken place between the parties on
30.01.2005 is ordered to be dissolved with effect from
today. Decree be drawn accordingly and copy of the
same be given to both the parties. File be consigned to
record room."
Detailed judgment dated 19.11.2019:
"1. This is a petition under Section 13-B (2) of
the Hindu Marriage Act for dissolution of marriage by
mutual consent filed by above mentioned parties being
husband and wife. The certified copies of the first motion
proceedings including statement, order of the court and
MOU deed dated 27.08.2019 are placed on record which
reflect that parties have fixed certain terms and
conditions of compromise.
2. The certified copies reveals that first motion
under Section 13-B (1) of the Hindu Marriage Act has
already been allowed by this court on 26.09.2019.
Today, petitioner no.1 has given Rs.27,17,000/- through
two DDs to petitioner no.2 in terms of MOU deed
MAT. APP.(FC) No.86/2020 Page 12 of 22
against all her claims of maintenance, alimony and
Istridhan etc.
3. The joint statement of the parties was recorded
who are identified by their respective counsel and their
identity is also ascertained from the photographs pasted
on the petition. I have also compared the signatures of
the parties on their joint statement with the signatures
appearing on the petition and found both are same. Thus,
there is no dispute of any identity of the parties. An
application for waiver of cooling period of six months
already moved which is allowed in view of the facts and
circumstances mentioned in the application.
4. The record and statement of the parties
point out that they are Hindu by religion and their
marriage took place on 30.01.2005 as per Hindu rites
and ceremonies beyond the jurisdiction of this court but
both the petitioners resided within the jurisdiction of this
court after marriage till their separation. The marriage
could not be continued and they started residing
separately since June, 2017.
5. Both the parties have clearly stated that they
are not interested for any patch up and there is no hope
for the same. The marriage between the parties is broken
down irretrievably and they cannot live together any
more.
6. Keeping in view the facts and circumstances
of the case, especially that due to temperamental
differences and attitudes, parties are not living together
for the last more than 2 years and have already settled
their claims full and final. Since, there is no hope for
saving of the marriage in any situation so the present
MAT. APP.(FC) No.86/2020 Page 13 of 22
petition u/s 13-B (2) of HMA is allowed and the marriage
between petition Sh. Mukesh Malhotra and Smt. Anshu
Malhotra taken place on 30.01.2005 is ordered to be
dissolved with effect from today through a decree of
divorce by mutual consent. Decree sheet be prepared
accordingly. File be consigned to Record Room."
15. The statements recorded of the parties by the Family Court was as
under:
Statement recorded on 19.11.2019 at second motion
"HMA No.1043/19
19.11.2019
Second Motion
Joint statement u/s 13-B (2) HMA of
Sh. Mukesh Malhotra (aged about 43 years) S/o
Sh. Gulshan Malhotra, R/o H.No.1/3223, Krishna Marg,
Ram Nagar Extension, Shahdara, Delhi-32.
AND
Smt. Anshu Malhotra (aged about 35 years) W/o
Sh. Gulshan Malhotra, D/o Late Sh. Brijesh @ Rakesh
Chadha, R/o H.No.G-23, UGF-2, Keshav Kun, Kailash
Puram, Ghaziabad, U.P.
On SA
We both are Hindu by religion and our marriage
took place on 30.01.2005 at Mukherjee Nagar, Delhi as
per Hindu rites and ceremonies. We had applied for
divorce by mutual consent through first motion petition
which was allowed by this court vide order dated
MAT. APP.(FC) No.86/2020 Page 14 of 22
26.09.2019. Certified copy of the proceedings of the first
motion including statements, order of the court, MOU
deed dated 27.08.2019 are annexed as Ex.P1
(collectively).
We have also placed on record marriage card,
copy of marriage photographs, identity documents also
which were already exhibited during first motion
proceedings.
We are residing separately since June, 2017 due to
temperamental difference and have not cohabited after
the decision of the first motion.
The MOU deed executed on 27.08.2019 between
us is contained terms and conditions which is already
exhibited during the first motion proceedings.
We have two children Harshita @ Ananya @
Ridhi (DOB 09.01.2006) and Aarna @ Mithu (DOB
24.09.2011) out of the said wedlock, who shall remain in
the care and custody of petitioner no.2 and petitioner
no.1 shall have no visitation rights.
We further declare that the marriage between us is
irretrievably broken down and we have decided not to
live together anymore. Various efforts were made by the
relatives, friends and even by court for patch up but of no
use.
We further declare that there has been no
inducement, threat or coercion by anybody and we are
giving statement voluntarily.
We further declare that there is no other
proceedings pending in the court between us.
MAT. APP.(FC) No.86/2020 Page 15 of 22
Today, I, Anshu Malhotra, petitioner no.2 has
received two DDs for sum of Rs.27,17,000/- (i.e.
Rs.26,00,000 through DD No.017849 dated 18.11.2019
drawn on HDFC Bank, Krishna Nagar branch, Delhi
and Rs.1,17,000/- through DD No.712775 dated
13.11.2019 drawn on UCO Bank, Krishna Nagar
branch, Delhi) in the name of Baby Ridhi Malhotra
payable by my husband, petitioner no.1 according to the
terms and conditions of MOU deed towards all claim of
maintenance, alimony and Istridhan etc. pertaining to
past, present or future for me and my both children. I
have already withdrawn all the cases and complaints
instituted by me, if any.
I, Mukesh Malhotra, petitioner no.1 undertake that
I will not have any visiting right qua the children and is
giving no objection for custody with petitioner no.2.
We are showing again our original identity
documents.
RO&AC
Sd-
(Signature & thumb impression of petitioner no.1)
Identified By Sh.K.K.Sharma, Ld. Counsel for
petitioner no.1.
Sd-
(Signature & thumb impression of petitioner no.2)
Identified By Sh.Mohd. Danish, Ld. Counsel for
petitioner no.2."
16. The counsel for the appellant also has not shown any error in the
aforesaid record and has not chosen to annex to this appeal the petition
MAT. APP.(FC) No.86/2020 Page 16 of 22
under Section 13B(2) of the HMA on which the aforesaid statements were
recorded and order/judgment made. Therefrom also adverse inference has to
be drawn, that there is nothing therein, on the basis of which the Family
Court should have refused to pass a decree for dissolution of marriage by
mutual consent.
17. On the contrary, the case of the appellant in the memorandum of
appeal is, (i) that the parties were married on 30th January 2005 and a
daughter was born to the parties on 9th January 2006 and another daughter
was born on 24th September 2011; (ii) that everything was going well in the
family of the parties till the second child was born; (iii) thereafter, the
members of the family of the respondent started misbehaving with the
appellant on the pretext that they wanted a male child, though the
respondent had no grievance in this regard; (iv) owing to the said behavior
of the family members, the appellant in the month of March 2016 started
suffering from depression, mental and anxiety disorder; (v) the respondent
who runs a medical shop, instead of taking his wife i.e. the appellant to
hospital, started treating her with his own knowledge but when there was no
sign of improvement, the respondent took the appellant first to a psychiatrist
in Jain Hospital and when there was still no improvement, to the Neurology
Clinic at Surajmal Vihar and thereafter to Sir Ganga Ram Hospital and to
various other hospitals in Delhi; (vi) the appellant and the respondent were
residing together in the matrimonial home till November 2019 without
separation of a single day; (vii) the appellant underwent neck surgery on 17th
July 2019 and during that time also, the respondent took care of the
appellant and the children; (viii) thereafter also the hospital attendant visited
MAT. APP.(FC) No.86/2020 Page 17 of 22
the appellant at her matrimonial home on several occasions; (ix) both the
children were also studying in the same school till the academic year 2019-
2020; (x) that the appellant and the respondent were never separated as
recorded in the Memorandum of Settlement Deed signed by the parties; (xi)
during the period when the appellant was not living a normal life and was
not in a position to take any decision, she was fraudulently made to sign the
Memorandum of Settlement Deed; and (xii) the appellant, after recovered
from her illness in the month of February 2020, tried to meet the respondent
and visit her matrimonial home, but was not allowed.
18. The appellant, alongwith the appeal has filed her medical
prescriptions including discharge slips from the hospitals to show that she
was suffering as claimed and that on most occasions she was accompanied
by her husband.
19. However, the aforesaid grounds or any of the facts were not available
before the Family Court, neither at the stage of petition under Section
13B(1) nor at the stage of the petition under Section 13B(2). Rather the
petitions were accompanied with a Memorandum of Settlement dated 27th
August, 2019 between the respondent and the appellant, recording that they
had been residing separately since June 2017 and had decided to dissolve
their marriage by filing a divorce petition through mutual consent and
containing the terms and conditions with respect to alimony, guardianship,
visitation rights, etc. In terms of the said Memorandum of Settlement, the
respondent paid to the appellant Rs.54 lakhs, approximately half at the time
of first motion of the petition for dissolution of marriage by mutual consent
and the balance at the time of recording the statements of the parties at the
MAT. APP.(FC) No.86/2020 Page 18 of 22
time of second motion. It is also worth mentioning that witness to the
signatures of the appellant on the Memorandum of Settlement is Deepak
Chaddha i.e. the brother of the appellant. It is nowhere pleaded that he was
not a witness and no other reason given as to how and in what circumstances
his signatures were obtained.
20. The other High Courts in the judgments referred by us hereinabove,
appeared to have held the appeal against a decree for divorce by mutual
consent to be maintainable, guided by the reason of making available a
remedy to a spouse there against, if such a decree could not have been
passed on the material available on record or had been passed in violation of
the procedure prescribed by law for passing thereof or if had been obtained
by misrepresentation or fraud. However in none of the said judgments save
the judgment of the Division Bench of the Gujarat High Court, we find any
reference to the proviso to Rule 3 of Order 23 CPC and with respect whereto
Supreme Court in Pushpa Devi Bhagat vs. Rajinder Singh (2006) 5 SCC
566 held as under:
"17. The position that emerges from the amended
provisions of Order 23, can be summed up thus:
(i) No appeal is maintainable against a consent
decree having regard to the specific bar contained
in section 96(3) CPC.
(ii) No appeal is maintainable against the order of the
court recording the compromise (or refusing to
record a compromise) in view of the deletion of
clause (m) Rule 1 Order 43.
MAT. APP.(FC) No.86/2020 Page 19 of 22
(iii) No independent suit can be filed for setting aside a
compromise decree on the ground that the
compromise was not lawful in view of the bar
contained in Rule 3A.
(iv) A consent decree operates as an estoppel and is
valid and binding unless it is set aside by the court
which passed the consent decree, by an order on
an application under the proviso to Rule 3 of
Order 23.
Therefore, 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
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. The second defendant,
who challenged the consent compromise decree was fully
aware of this position as she filed an application for
setting aside the consent decree on 21.8.2001 by alleging
that there was no valid compromise in accordance with
law. Significantly, none of the other defendants
challenged the consent decree. For reasons best known
to herself, the second defendant within a few days
thereafter (that is on 27.8.2001), filed an appeal and
chose not to pursue the application filed before the court
which passed the consent decree. Such an appeal by
second defendant was not maintainable, having regard to
the express bar contained in section 96 (3) of the Code."
21. The aforesaid view has been reiterated in R. Rajanna Vs. S.R.
Venkataswamy (2014) 15 SCC 471, Ved Pal (Dead) Through LRs Vs.
MAT. APP.(FC) No.86/2020 Page 20 of 22
Prem Devi (Dead) Through LRs (2018) 9 SCC 496 and Triloki Nath Singh
Vs. Anirudh Singh (Dead) Through LRs 2020 SCC OnLine SC 444.
Mention though may also be made of Daljit Kaur Vs. Muktar Steels Private
Limited (2013) 16 SCC 607, but which was a case where, before the court in
which compromise was arrived at itself, while it was contention of one of
the parties that compromise has been arrived at and of the other that there
was no compromise; the court, on making inquiry found that there was a
compromise and passed a decree in terms thereof. It was held that such a
decree would not fall in the genre of a consent decree and appeal there
against would be maintainable.
22. As would immediately become obvious, the law with respect to
consent decree is, that though appeal is not maintainable there against but
the remedy for a eventuality of consent having been obtained forcefully or
fraudulently or having been obtained by misrepresentation is, by applying to
the same court. We do not find any reason why the said principle of law of
general application should not follow qua decree of divorce by mutual
consent when the grounds of appeal are on the basis of facts, which were not
before the court which passed the consent decree. It is only the court which
passed the consent decree which is capable of going into the said facts and if
finds any prima facie merit therein, make inquiry by recording evidence
with respect thereto and to thereafter take a final decision. Against such an
order, an appeal may lie. We however do not deem it necessary to give a
final opinion in this regard. However when the facts on which setting aside
of a decree for divorce by mutual consent are pleaded in the appeal for the
first time, it is not in the domain of the appellate court to enter into the
MAT. APP.(FC) No.86/2020 Page 21 of 22
inquiry into the said facts and if the same is done, would also deprive the
parties of an important right of appeal, by converting the appellate court into
a fact finding court.
23. We therefore do not find the appeal to be maintainable and dismiss
the same with liberty to the appellant to take steps in accordance with law, if
entitled thereto.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. JUNE 03, 2020 pkb MAT. APP.(FC) No.86/2020 Page 22 of 22