Gujarat High Court
Manisha Anand vs Nilesh Anand on 3 December, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/CA/1081/2024 JUDGMENT DATED: 03/12/2024
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IN THE HIGH Court OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1081 of
2024
In R/FIRST APPEAL NO. 4223 of 2024
With
R/FIRST APPEAL NO. 4223 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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MANISHA ANAND
Versus
NILESH ANAND
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Appearance:
RAJPUROHIT R BHAWARLAL(9420) for the Applicant(s) No. 1
MR PP BANAJI(140) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/12/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) ORDER IN CIVIL APPLCIATION (FOR CONDONATION OF DELAY) NO.1081 OF 2024
1. Heard learned advocate Mr.Veer Kankaria with Mr.Rajiv Rajpurohit, learned advocate for the applicant and Mr.P.P.Banaji, learned advocate for the respondent.
2. This appeal has been filed by the appellant, who was a party to an application filed under Section 13-B of the Hindu Marriage Act, 1955. She, along with the respondent herein, Page 1 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined applied for divorce by mutual consent. Having applied for divorce by mutual consent by a joint application and the Family Court, having so granted the application vide its order dated 17.08.2023, the wife is in appeal challenging the judgment and decree of Family Court. There has been a delay of 96 days in filing the appeal.
3. While hearing the application for condonation of delay, we had requested learned counsels for the respective parties to address us on the issue whether an appeal, at all, will be maintainable against the judgment and decree passed by a Family Court on an application for divorce by mutual consent.
4. For the reasons assigned separately and considering the objections raised by the respondent, which he has filed on an affidavit to the civil application for condonation of delay, we condone the delay in filing the appeal.
ORDER IN FIRST APPEAL NO.4223 OF 2024
1. Since, we have heard the appeal on merits, we decided to dispose of the appeal today itself. Page 2 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024
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2. ADMIT. Learned advocate, Mr.P.P.Banaji waives service of notice of admission on behalf of the respondent.
3. This appeal under Section 19 of the Family Courts Act, 1984 (hereinafter referred to as "the Act, 1984', has been filed by the appellant - Manisha Anand, challenging the judgment dated 17.08.2023, passed by Family Court No. 6, Ahmedabad, in Family Suit No. 1314 of 2023. The suit was filed by both the appellant - wife and respondent - husband under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act, 1955"), seeking divorce by mutual consent. By the order under challenge, the Family Judge, in the suit so filed jointly by the appellant and the respondent, passed decree of divorce dissolving the marriage of the parties as per the terms and conditions stated in the mutual consent petition.
4. The appellant - wife who was a party to the application, which was filed jointly with the respondent, has come before us challenging the judgment and decree of the Family Court on the ground that the judgment and decree of Page 3 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined divorce passed by the Family Court is bad inasmuch as the judgment and decree is obtained by misrepresentation and fraud.
5. Learned advocate, Mr.Veer Kankaria with Mr.Rajiv Rajpurohit, learned advocate for the applicant would submit that the appellant was forced to sign the divorce petition, therefore, it is clearly evident that as a result of undue influence, the petition for mutual consent was signed. He would submit that she had no intention of undergoing separation. Stressed by the fact that her mother was not keeping well, she was compelled to sign the marriage dissolution petition under Section 13-B of the Act, 1955 and the divorce was hastily obtained.
6. Learned advocate for the appellant would submit that, having married in the year, 2004, the divorce petition was filed on 07.06.2023. The date of purported separation in the petition for mutual consent, as well as in the judgment and order, is shown as 15.01.2022. In fact, cognizance can be Page 4 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined taken of the fact that, even post the petition so filed, both parties have stayed under one roof and gone out together, for which, he has pressed into service and relied on photographs before us. He would, therefore, suggest that apparently, when both were still staying together, there was no reason for the appellant to seek divorce by mutual consent by filing and being signatory to a joint petition before the Family Court.
7. Learned advocate for the appellant would submit that the appellant's mother died on 30.11.2023. She was unwell, and therefore, intervening circumstances made it difficult for her to comprehend the ramifications of filing a mutual consent petition and subsequently realised that she was fraudulently through coercion, undue influence, and misrepresentation drawn into the signing of a mutual consent petition. The judgment and decree of the Family Court, dissolving the marriage through mutual consent, should be quashed and set aside and the decree of divorce be annulled.
8. On the issue of whether the first appeal is Page 5 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined maintainable or whether it is open for a party seeking mutual consent to turn around and challenge the order on the ground of fraud was put forth by the learned counsel for the appellant.
9. Learned advocate for the appellant has extensively addressed us on the issue of the appeal being maintainable by citing various authorities of different High Court to suggest that an appeal is maintainable. The list of decisions cited by the learned counsel for the appellant reads as under:-
(i) Sau.Sushama w/o Pramod Taksande v/s Shri Pramod s/o Ramaji Taksande reported in 2009 (4) Mh.L.J.;
(ii) Krishna Khetarpal vs. Satish Lal reported in (1987) 2 SCC 264;
(iii) Hitesh Narendra Doshi vs. Jesal Hitesh Doshi reported in 2000(2) SCC 258;
(iv) Mahinder Pal Kaur vs. Gurmit Singh reported in 2002 (2) SCC 484 Page 6 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined
10. The other submission made by learned advocate for the appellant, was that assuming for the sake of argument that the challenge to the decree is not maintainable on the ground of fraud, the ingredients of Section 13-B were not satisfied inasmuch as without ascertaining the fact that whether the parties wanted to separate and whether the mandatory conditions of Section 13-B were followed, the same are not at all discussed by the learned judge.
11. Learned advocate for the appellant relying on the decision in the case of Sau.Sushama w/o Pramod Taksande (supra) would submit that a first appeal against the judgment and order of Family Court would definitely be maintainable. He would rely on paragraph 8 of the decision and submit that it was incumbent upon the Family Court to verify the voluntary nature of the consent and also duly try and conciliate and wait for a period of six months and then pass a decree. In case, the Court does so mechanically, it is always open for the party to the consent decree to challenge the Page 7 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined same.
12. While relying on the decision in the case of Krishna Khetarpal (supra), he would submit that, as per the decision of Punjab and Haryana High Court, the judgment would suggest that an appeal against an order or a judgment seeking decree of mutual consent can always be challenged.
13. Relying on the decision in the case of Hitesh Narendra Doshi (supra), learned advocate for the appellant, read out paras 3 to 5 of the decision and submitted that in accordance with the provision of Section 28 of the Hindu Marriage Act, a decree, which does not satisfy the ingredient of free consent can always be challenged when it is apparent that the procedure prescribed under Section 13-B has not been followed.
14. We may not extensively refer to the relevant paragraphs that the learned advocate for the appellant relied upon in each of the decisions as, in substance, by relying on such decisions, not only was an emphasis made by the Learned Page 8 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined advocate for the appellant that it is open for a party, who is a signatory to a mutual consent petition to challenge the judgment and decree of such Court if the consent is vitiated by fraud or misrepresentation but also on the ground that the mandatory procedure under Section 13-B is not followed.
15. Mr.P.P.Banaji, learned advocate appearing for the respondent - husband, during his course of submission, would invite our attention to the reply that he filed in the civil application opposing condonation of delay. He would submit that that though the parties got married on 09.05.2004, the relationship soured, as a result of which both of them decided that they needed to separate. When reconciliation attempts had failed, it was decided to file a petition for divorce under the provisions of Section 13-B of the Hindu Marriage Act, 1955. A petition, jointly signed by both the appellant and the respondent, was filed on 07.06.2023 seeking divorce by mutual consent wherein it was stated that since they have been staying separately for more than a year i.e., since 15.01.2022, Page 9 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined a decree of divorce by mutual consent be passed.
16. Mr.P.P.Banaji, learned advocate for the respondent would submit that it is not open for the appellant to turn around and now challenge a decree, which has been granted by mutual consent. He would invite our attention to certain proceedings, which indicated that both the parties had willingly agreed to waive any and/or all claims with regard to the properties and also not to file any maintenance application under Section 125 of the Code of Civil Procedure, 1973. The appellant then instituted a suit in the City Civil Court at Ahmedabad for declaring the registered gift deed in favour of her son to be null and void. That suit was filed on 28.12.2023, post the decree of divorce on 17.08.2023. He would submit that the appeal was filed post this suit and therefore, even otherwise, if the delay is condoned in filing the appeal, knowledge of the fact, having obtained the decree of divorce by mutual consent is apparent. He further submitted that the appellant left for Australia on 02.09.2023, returned to India on Page 10 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined 08.11.2023 as her mother was ailing, and again left for Australia on 29.11.2023 after filing the suit before the civil Court.
17. In support of his submission that a first appeal, challenging the judgment and decree of the Family Court when a divorce by mutual consent is obtained, cannot be challenged in appeal on the grounds of fraud is well-settled by several decisions of this Court. Firstly, Mr.Banaji, learned advocate for the respondent, relied upon a division bench judgment of this Court in the case of Jyoti W/o Darshan Nirmal Jain and Daughter of Chandramohan Dayal vs. Darshan Nirmal Jain, reported in 2012 (2) GLH 206. He would also rely upon a decision Of the Delhi High Court in the case of Anshu Malhotra versus Mukesh Malhotra, reported in 2020:DHC:2021- DB in MAT.Application No.(F.C.) No.86 of 2020 dated 03.06.2020 to submit that a first appeal against a consent decree of divorce is not permissible. Reliance was also placed on a decision of the Allahabad High Court in the case of Page 11 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined Deepa Bajpai vs Dr. Ashish Mishra reported in 2022 SCC Online All 342.
18. Since the issue at large before us is whether it is open for a party who has obtained a consent decree pursuant to a petition under Section 13-B for mutual consent can approach this Court by challenging the same on the ground that the same is being filed by misrepresentation or fraud. Let us first take the facts as they appeared before us in the petition by mutual consent filed under Section 13B of the Hindu Marriage Act.
19. Perusal of the petition filed before the Family Court for mutual consent under Section 13-B of the Act would indicate that both the appellant and the husband, on 07.06.2023, under their signature, filed the application. Reading the contents of application would indicate that it is their case that they got married on 09.05.2004 and since about 15.01.2022, they were residing separately. It is their case that appellant was residing in a separate house in Ahmedabad, Page 12 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined whereas the respondent was residing in another house within the city of Ahmedabad. That they had two children out of the wedlock. Reading of para 6 of the application would indicate that they had come to an understanding that their marriage is irretrievably broken down and that all reconciliation attempts have failed. Hence, the petition for divorce under Section 13-B of the Act, 1955 was filed.
20. Para 8 of the application reads as under:-
"8. Both the parties have been living separately in Ahmedabad since about 15 th January 2022, i.e., more than a year ago, and this present application is being filed more than a year thereafter."
21. A further reading of the application would indicate that the parties have given up their rights by mutual settlement to respective properties and claims for money and the appellant, submitted that she has waived her right to claiming permanent alimony too. What is also noteworthy is that the application refers to a deed of divorce executed before a public notary and suggests that she wants to visit Australia Page 13 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined and settle abroad, and therefore, sought exemption to attend the Court proceedings. Having filed such an application, we also note that the application is accompanied by separate affidavit of the appellant and respondent herein of the 07.06.2023. The list of documents indicates that the deed of divorce was part of the paper book filed with the mutual consent application, and the application was filed for permission to engage a lawyer, which too was granted. A purshish was filed on 07.06.2023.
22. It is also on record at Exhibit 10, which is part of an annexure to the reply filed by the respondent to the civil application for condonation of delay suggesting that a conciliation report was furnished before the Court. Reading of the report would indicate that both parties were present with their lawyers and they found that since the marriage was irretrievably broken down, they had decided to separate. It is signed by both parties to the proceedings as well as their respective counsels. In fact, what we note is that one, Shri Page 14 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined J.G.Patel has identified both the appellant and the respondent. On 19.07.2023, both parties filed an application for waiver of the six-month waiting/cooling period. The application indicated that they had filed a petition for divorce on 07.06.2023 and there was no question of them staying together and the appellant wanted to travel abroad and therefore, they requested the Court to waive the "Consent waiting period of six-months". Relying upon a decision of the Hon'ble Supreme Court of India in the case of Amardeep Singh vs. Harveen Kaur, reported in AIR 2017 SC 4417, the Family Court, on 19.07.2023, passed an order on this application below Exhibit 11, recording that they had heard the petitioners, read the application and in light of the decision of Hon'ble Supreme Court of India, ordered waiving of the cooling period of six- months. That order was passed on 19.07.2023. Affidavits were also filed with the waiver application, which are also on record. A closing purshish was filed on 01.08.2023, signed by the parties, and thereafter, the Family Court, by judgment Page 15 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined under challenge, dissolved the marriage.
23. Reading of the order of the learned judge, after a brief narration of the facts and recording that the parties had sought a divorce by mutual consent, the Court recorded its satisfaction that the parties had not presented the petition through collusion and that it was established that consent of the petitioner had not been obtained by force, undue influence or fraud. Therefore, the Court recorded that the wedlock had become deadlock and there was no point in telling them to continue their relationship as husband and wife. It would be in their interest to reside separately. A judgment and decree was accordingly passed.
24. This, therefore, brings us to consider whether an appeal against such an order and judgment passed by the Family Court is maintainable.
25. We have given anxious consideration to the decision relied upon by learned counsel for the appellant. What we note from the decision in the case of Sau.Sushama w/o Pramod Page 16 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined Taksande (supra) is that it was a case where the High Court was approached by way of a regular civil appeal. The appeal was filed against the order of the civil judge who dissolved the marriage by consent. The Court was considering the issue whether there was compliance of the provisions of Section 13(1)(bb) of the Hindu Marriage Act. The Court found that in accordance with the provision under Section 13-B of the Act, the petitioner did not state material particulars as to whether they were staying separately for more than a year. What the High Court found was that the judgment was delivered mechanically without verifying the voluntary nature of the consent, the provision of the period of separation and attempts at conciliation.
26. This absolutely is not the case on hand. In the facts of this case, we have seen the annexures to the reply filed by the respondent, to which we have made a mention in our earlier part of this order and the chronology of events and dates, unequivocally indicate that a mutual consent petition was filed Page 17 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined on 06.06.2023, where the statement was made that they are staying separately since 15.01.2022. The application was accompanied by separate affidavits of both the appellant and respondent. Then an application was filed in accordance with the decision of the Supreme Court for waiving of cooling period of six months. Preceding all this, a conciliation report is on record, which indicates that an attempt was made to conciliate.
27. Having failed, the learned judge passed an order on 19.07.2023 waiving the cooling period of six months in light of the decision the Supreme Court. Till such stage, we may note that the appellant keeps silent without a murmur. She does not even think it fit to assail this stand of the parties.
28. Having perused the decision in the case of Krishna Khetarpal (supra), we note that the decision and other decisions on which learned advocate for the appellant has relied upon, are decisions in a challenge to a decree of Family Court under Section 28 of the Hindu Marriage Act, 1955. Page 18 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024
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29. Before us, the appeal is under Section 19 of the Family Courts Act. At this stage, we deem it appropriate to reproduce the relevant provisions of the two Acts. Section 28 of the Hindu Marriage Act, which deals with appeals against decrees and orders, reads as under:-
"28. Appeals from decrees and orders.--(1) All decrees made by the Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order.
30. Section 19 of the Family Courts Act, which deals with appeals, reads as under:-
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19. Appeal.-
(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):Provided that nothing in this sub-
section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991). (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges. Page 20 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024
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31. Reading Section 28 of the Hindu Marriage Act would indicate that it provides that all decrees made by the Court in any proceeding under this Act are appealable, and such appeals will lie ordinarily to the Court of its original civil jurisdiction. What must be noted that sub-section 2 of Section 19 of the Family Courts Act provides that no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties. Obviously, therefore, considering the purpose and the intention of a decree obtained by consent and the limitations that should arise in case an order needs to be passed, appeals under subsection 2, would clearly be barred.
32. We may refer to the decision of the Division Bench of this Court in the case of Jyoti W/o Darshan Nirmal Jain and Daughter of Chandramohan Dayal (supra). Before the Division Bench, as is evident from the judgment, a short but complex and interesting question had arisen. A joint petition for divorce was filed by the parties and on having decided to end their marriage, a mutual consent petition under Section 13 -B of the Page 21 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined Act was filed. The Family Court, after having recorded the consent, dissolved the marriage. An appeal was filed by the wife, firstly, on the ground that her consent was obtained through deceit and fraud. She believed that such a dissolution was cosmetic. The second ground was that the Family Court had ignored the requirements of Section 13-B of the Act.
33. We may note that on these very grounds, the present appellant has come before us to challenge the judgment and decree of the Family Court proceedings.
34. We have noted the decision relied upon by the learned advocate for the respondent in that case where the objection regarding maintainability was taken. Dealing with that aspect first, i.e., with regard to the maintainability of an appeal, touching upon certain provisions of the Code of Civil Procedure, namely, Section 96 and also the provisions of Order XLIII Rule 1(m), the Division Bench, considering the decisions of Allahabad High Court in the case of Smt.Neera Saxena vs. Sanjeev Kumar Saxena,reported in AIR 2000 ALD 277, opined Page 22 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined as under:-
"22.Insofar as the first question is concerned, the same has two parameters. First aspect is whether the appeal would be maintainable in view of the provisions contained in section 19(2) of the Family Courts Act, 1984 insofar as the appellant alleges fraud or deceit on the part of the husband in obtaining her consent for dissolution of marriage. The second aspect of maintainability of appeal would be in relation to challenge of the appellant on the ground that even if the wife's consent was validly obtained, the Family Court could not have annulled the marriage in view of the provisions contained in section 13-B of the Hindu Marriage Act, 1955.
23. We deal with first aspect of maintainability of appeal first. Before doing so, a few statutory provisions would have to be noted. The Family Courts Act, 1984 was enacted by the Parliament with certain purpose in mind. Statement of objects and reasons for enactment of the said statute records that the Law Commission in its 59th Report had stressed that in dealing with the disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before commencement of the trial. It was noted that the Courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt in the public interest to establish Family Courts for speedy settlement of family disputes. With these objects in mind, the Family Courts Act, 1984 was enacted. Section 3 of the Family Courts Act pertains to establishment of family courts. Section 7 thereof lays down the jurisdiction of the Family Court. Section 8, inter alia, provides that where a Family Court has been Page 23 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined established for any area, no district Court or any subordinate civil Court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in sub-section (1) of section 7. Thus, Family Courts have exclusive jurisdiction over matters specified in sub-section (1) of section 7 of the said Act.
24. Section 9 of the Family Courts Act enjoins a duty on the Family Court to make efforts for settlement and provides, inter alia, that in every suit or proceedings, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the suit or proceedings and for this purpose, Family Court may, follow such procedure as it may deem fit. Section 10 of the Act pertains to procedure that the Family Court may follow and reads as under:
"10. Procedure generally - (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), be fore a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.Page 24 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024
NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined (3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other."
Section 19 pertains to appeal and reads as under:
"191. Appeal.- (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before the commencement of the Family Courts (Amendment) Act, 1991.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Page 25 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined Code of Criminal Procedure, 1973 (2 of 1974) for thepurpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.
(6) An appeal referred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."
27. It may be that by virtue of the provisions made in the Code of Civil Procedure, particularly post Amendment Act 1976, it would be open for a litigant to contend that even if a decree is passed on consent, on the ground that such consent was not a free consent or that the same was based on coercion, fraud or undue influence, appeal would be maintainable. We may notice that in the 2002 Edition of the Code of Civil Procedure by Justice C.K. Thakker, in Vol. 2, the learned author observed that the principle that on compromise or adjustment of the suit, a decree is passed which would bind the parties, and would not be appealable would apply to cases of admitted and undisputed compromise or adjustment and where the factum ofcompromise itself is in dispute or compromise decree is challenged on the ground that such compromise has been arrived at or there was no valid consent, the bar of section 96(3) will not operate. Two classes of cases were envisaged. In the former class of cases, where there is no dispute as to the factum of compromise, bar under sub-section (3) of section 96 was held applicable. However, in the latter class of cases, where there is serious dispute of compromise or agreement, the doctrine would have no application. This is also the view of the Division Bench of this Court in the case of Ramratanbhai Badriprasad Page 26 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined Agrawal (supra). In the said decision, the Division Bench observed as under:
27. It may be that by virtue of the provisions made in the Code of Civil Procedure, particularly post Amendment Act 1976, it would be open for a litigant to contend that even if a decree is passed on consent, on the ground that such consent was not a free consent or that the same was based on coercion, fraud or undue influence, appeal would be maintainable. We may notice that in the 2002 Edition of the Code of Civil Procedure by Justice C.K. Thakker, in Vol. 2, the learned author observed that the principle that on compromise or adjustment of the suit, a decree is passed which would bind the parties, and would not be appealable would apply to cases of admitted and undisputed compromise or adjustment and where the factum of compromise itself is in dispute or compromise decree is challenged on the ground that such compromise has been arrived at or there was no valid consent, the bar of section 96(3) will not operate. Two classes of cases were envisaged. In the former class of cases, where there is no dispute as to the factum of compromise, bar under sub-section (3) of section 96 was held applicable.
However, in the latter class of cases, where there is serious dispute of compromise or agreement, the doctrine would have no application. This is also the view of the Division Bench of this Court in the case of Ramratanbhai Badriprasad Agrawal (supra). In the said decision, the Division Bench observed as under:
"10. In our view, the aforesaid observations and the decision of the Apex Court in case of Kishun (supra) makes it clear that when there is contest on the question as to whether there was a valid compromise or not and a decree by accepting the compromise has been passed upon the decision of any controversy raised, it cannot be said to be a decree passed with the consent of the parties and, therefore, the bar u/Section 96(3) of the CPC could Page 27 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined have no application and consequently the appeal u/Section 96(1) of the CPC would be maintainable."
In the present case, however, the question is whether the provisions of Code of Civil Procedure insofar as they pertain to appeal against original decree would apply or not."
35. Reading the aforesaid paragraphs of the judgment would indicate that, analyzing such provisions, the Division Bench of this Court held that, by virtue of subsection 2 of Section 19, no appeal is maintainable from a decree or order passed by the Family Court.
36. We note that, since the Division Bench referred to a decision of the Allahabad High Court in the case of Neera Saxena (supra), we may reproduce paragraph 5.2 of the decision in the case of Meera Saxena (supra), where the Court that held :-
"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 Page 28 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined 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 Judges, 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 fraud 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 proceeding 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."
37. Whether in fact, fraud was practiced is a question of fact, which can only be gone into by the original Court itself. As far as the decisions cited by the learned advocate for the appellant, as indicated earlier are concerned, they were decisions more or less under Section 28 of the Hindu Marriage Act. What is evident from another Allahabad High Court Division Bench decision which our Court considered was in the case of Ashutosh Kumar vs Anjali Srivastava, reported in AIR Page 29 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined 2009 ALD 100, wherein the Could observed in para 5 thus:-
"5. Special law is a law which is enacted for special cases, in special circumstances, in contradiction to the general rules of law. For that matter the Hindu Marriage Act, 1955 is undoubtedly a special law as it has been enacted to deal with the special cases in relation to matrimonial/Family disputes amongst the Hindus and with the procedure of settlement of such disputes. It contains not only the substantive law dealing with the grounds for decree of divorce and other matters but also with the procedure including appeals thereof."
38. What is, therefore, evident is that the Family Court Act is a special law and therefore, the appeal being governed by Section 19(2) of the Act would make it difficult for us to accept the submission of the appellant that an appeal shall lie against a decree or judgment obtained by fraud in a mutual consent petition.
39. The Supreme Court in the case of Banwari Lal Vs. Chando Devi, reported in AIR 1993 SC 1139, has observed as under:-
"5. The learned Subordinate Judge, after hearing both the parties and referring to different facts and circumstances of the case including that the compromise petition filed on 27.2.1991 had not been signed by both the parties as required by Order 23, Rule 3 of the Page 30 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined Code, recalled the order disposing of the suit in terms of the petition of compromise. He directed restoration of the suit to its original number. Against that order a revision application was filed before the High Court on behalf of the respondent. A learned Judge, as already stated above, set aside the aforesaid order passed by the learned Subordinate Judge saying that the petition which was filed on 27.2.1991 as petition of compromise was really an application filed on behalf of the appellant for withdrawal of the suit under Order 23, Rule 1 of the Code and as the appellant had voluntarily withdrawn the suit there was no occasion to recall the order dated 27.2.1991 treating it to be an order under Order 23, Rule 3 of the Code."
40. We, as a first appellate Court, cannot go into the question whether the decree was obtained/vitiated by fraud, undue influence or misrepresentation.
41. We are therefore of the opinion that the appeal would itself be not maintainable in light of the provisions of section 19 (2) of the Family Courts Act.
42. It is also pointed out to us, showing the agreement for divorce, that the same itself is an agreement, which can be said to be doubtful. We may note after having perused the agreement so entered into that it is witnessed not only by the Page 31 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined parties to the application by mutual consent but also their relatives i.e., their parents on both sides. We are refraining from saying anything on this, because once having held the appeal as not being maintainable, we would not like to go into the aspect of the facts.
43. That brings us to the alternative submissions made by the learned advocate for the appellant that the basic ingredients and the mandatory provisions of Section 13 -B of the Hindu Marriage Act, were not complied with.
44. Then the second ground was that the Family Court had ignored the requirements of Section 13-B of the Act. Reading of the application would indicate that the date from which they were staying separately was shown as 15.01.2022. The same is even reiterated in their affidavit, in the purshish, in the conciliation report of the Family Court, and so also in the application made for waiving off the cooling period. That application for waiving off the cooling period was filed under joint signatures and their affidavits together. The parties were Page 32 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined heard by the learned Family judge, who recorded his observation at Exh.11 ascertaining the willingness of both the parties to separate.
45. Learned advocate for the appellant would like to draw support from para 43 of the decision of division bench of this Court in the case of Jyoti W/o Darshan Nirmal Jain and Daughter of Chandramohan Dayal (supra), to submit that even if the appeal is not held to be maintainable, the facts before the division bench finally weighed in favour of the wife in entertaining the appeal.
46. We would not agree with the submission of learned advocate for the appellant, inasmuch as in the case before the Division Bench apparently, the cooling period was not even waived, whereas in the facts of the present case, apparently with open eyes, both the parties have filed an application for waiver of the cooling period of six months and therefore, in our opinion, the statutory condition of Section 13-B in light of the decision in the case of Amardeep Singh (supra), was Page 33 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024 NEUTRAL CITATION C/CA/1081/2024 JUDGMENT DATED: 03/12/2024 undefined complied with.
47. For the aforesaid reasons, we see no reason to entertain the present appeal and the appeal is accordingly, DISMISSED. The civil application is also disposed of accordingly.
(BIREN VAISHNAV, J) (MAULIK J.SHELAT,J) MOHD MONIS Page 34 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Dec 11 2024 Downloaded on : Fri Dec 20 22:15:01 IST 2024