Allahabad High Court
Smt. Neera Saxena vs Sanjiv Kumar Saxena on 29 February, 2000
Equivalent citations: 2000(2)AWC1401, AIR 2000 ALLAHABAD 277, 2000 ALL. L. J. 2299, 2000 A I H C 4437, 2000 (1) ALL CJ 664, 2000 ALL CJ 1 664, 2000 (2) ALL WC 1401, 2000 (39) ALL LR 225
Author: Lakshmi Bihari
Bench: Lakshmi Bihari
ORDER
Binod Kumar Roy and Lakshmi Bihari, JJ.
1. Heard. The destitute wife is the appellant. She has filed this appeal under Section 19(1) of the Family Courts Act. 1984 (hereinafter referred to as the Act) assailing the validity of the order dated 30th January, 2000 passed by Sri S. C. Bose, Judge, Family Court. Moradabad, disposing of Family Case No. 596 of 1999 in terms of compromise alleging, inter alia, that neither the case nor was the compromise filed by her and that her husband has played fraud on Court.
2. The office has raised an objection to the maintainability of this appeal on the ground that since the order is a consent one, therefore, under Section 19(2) of the Act, an appeal does not lie.
3. Sri Prakash Krishna, learned counsel for the appellant contests the correctness of the report of the Stamp Reporter by placing reliance on two Judgments-one of the Supreme Court and another of a learned single Judge of this Court.
4. The Judgment of the learned single Judge of this Court in Smt. Kamla Devi v. Rajendra Pal Singh, AIR 1972 All 338, shows that when there was nothing in the compromise decree to show that the grounds mentioned in Sections 10 and 13 of the Hindu Marriage Act were made out. then that decree could be set aside in Second Appeal on the ground of without jurisdiction.
5. The relevant part of the judgment of the Supreme Court in Balwinder Kaur v. Hardeep Singh, JT 1997 (9) SC 157. on which reliance has been placed reads thus :
"16. In the circumstances aforesaid, the High Court should not have summarily dismissed the appeal. By doing so it has also failed to exercise its power of superintendence under Article 227 of the Constitution. The High Court should have seen if the proceedings before the District Judge were in accordance with the procedure prescribed and as per the law applicable. To direct the appellant to file a separate suit for setting aside the decree of divorce on the ground of fraud otherwise is hardly a solution to the case."
5.1. We have perused the judgment in Balwinder Kaur. This judgment shows that the appeal in question was filed under Section 28 of the Hindu Marriage Act. 1955, against the following order passed by the Punjab and Harvana High Court :
"Neither any ground for condoning the delay of 263 days is made out nor there is any merit in the appeal. It is the applicant-appellant who filed a petition for divorce under Section 13 of the Hindu Marriage Act. If any fraud has been practised on the applicant, the present appeal is not the appropriate remedy. The remedy lies with the civil court. The application as well as the appeal is dismissed.' 5.2. As per the ratio laid down by the Supreme Court, the appellant has not invoked the powers of superintendence under Article 227 of the Constitution of India. She has already moved the Judge, Family Court for nullifying the alleged consent order by resorting to inherent powers of the Court. it further appears that the said application is still pending adjudication of the Judge. Family Court. In this regard, we also add that inherent powers of the Court is having its root in necessity. We are conscious of the judgment of the Supreme Court in Banwari Lal v. Chando Devi AIR 1993 SC 1139. Here the appellant has already moved the Judge, Family Court ventilating her grievances. This Judgment explains in detail about the consequences of fraud and misrepresentation. We hope and trust that the law laid down therein will be well appreciated by the Judge. Family Court. The question, however. Is as to whether in fact fruad was practised by the husband on Court in filing the applications in the name of the appellant is a question of fact which can be conveniently and appropriately gone into by the original court Itself which is expected to know the dictum that fraud vitiates a proceedings and renders it nullity and void from very inception and this question has to be adjudicated by the Judge. Family Court, if the husband contests, then after taking evidence from both sides.
6. Consequently, this appeal is dismissed.
7. The Stamp Reporter is directed to go through the decision of the Supreme Court in Banwari Lal (supra).
8. Before parting, it is clarified that any observation made in regard to appellant's application, which is pending adjudication by the Judge. Family Court shall not be interpreted to mean any expression of this Court on merits of that application, which has to be decided in accordance with law Including observations made by us.
9. The office is directed to despatch a copy of this order to the Judge, Family Court, Moradabad, forthwith for compliance of the directions made as above.