May 29, 2018
In a recent case decided by the High Court of Allahabad has opined that where the consent itself is disputed and is not said to be genuine the same can be assailed by way of appeal.
In the case, the Appellant wife appealed against decree of divorce passed by the Family Court under Section 13B of Hindu Marriage Act, 1955 (Divorce by Mutual Consent) on the ground that the divorce decree was allegedly obtained by fraud by getting the signatures of the appellant-wife on the petition by coercion.
Here it would be relevant to throw some light on the law prevailing in context of appeal against decree passed by consent of parties. Section 19(2) of the Family Courts Act, 1984 prohibits filing of an appeal against a decree passed with the consent of the parties.
Hence, the intrinsic issue that fell for consideration by the Court was whether an appeal would lie under Section 19 of the Family Courts Act, 1984 against a decree passed under Section 13-B of the Hindu Marriage Act, 1955 by mutual consent?
The High Court while pronouncing its verdict made reference to statutory provisions governing the law relating to divorce by mutual consent. The Court made the following observations in the case:
- That 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.
That the first part of the above provision contemplates for presentation of petition for dissolution of marriage by mutual consent by both the parties to the marriage, if they are living separately for a period of one year or more and that have agreed to the dissolution of the marriage. The second part of the above provision has two sub parts. The first sub part provides for moving a motion by both the parties not earlier than six months from the date of presentation of the divorce petition and not later than eighteen months of the said date. In other words, it contemplates initiation of the second motion by both the parties after expiry of six months but before the expiry of eighteen months from the date of presenting petition for divorce.
The second sub part contemplates that if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making inquiries that the averments in the petition are true, pass a decree for divorce.
- Reference was also made to Supreme Court’s judgment in the case of Hitesh Bhatnagar v. Deepa Bhatnagar, wherein it was held that if the second motion is not made within period of eighteen months of the first motion petition, then court is not bound to pass a decree of divorce by mutual consent. The High Court stated that the aforesaid time limit is not for withdrawal of the petition or consent, rather consent can be withdrawn at any time before a decree of divorce is passed.
- Consent Obtained by Fraud– In this context, the Court made reference to Apex Court’s judgment in the case of Sureshta Devi v. Om Prakash, wherein it was observed 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.
- The Court stated that 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.
- Appeal under Section 28 of the Hindu Marriage Act, 1955– The Allahabad High Court in this regard held that Section 28 of the Act 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.
- That 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 it becomes the solemn duty of the Court to hold an inquiry in this respect before proceeding to pass a decree of divorce.
In view of the aforesaid facts and circumstances the Division Bench of the High Court held that even 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 entire case can be accessed here.
 1992 AIR 1904