HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 3

Case :- FIRST APPEAL DEFECTIVE No. – 56 of 2018

Appellant :- Smt. Nidhi Soni

Respondent :- Pawan Kumar Soni

Counsel for Appellant :- Rama Kant Srivastava

Counsel for Respondent :- Bhanu Pratap Singh,Ravi Kant Shukla

Hon’ble Anil Kumar,J.

Hon’ble Saurabh Lavania,J.

Heard Shri Rama Kant Srivastava, learned counsel for the appellant and Shri Ravi Kant Shukla, learned counsel for the respondent.

By means of the present appeal, the appellant has challenged the judgment and decree dated 23.01.2015 passed by Principal Judge, Family Court, Bahraich in Regular Suit No.48 of 2015 under Section 13 of Hindu Marriage Act, 1955.

Facts of the present case are that the appellant and the respondent solemnized the marriage with each other as per Hindu Rites and Rituals on 01.12.2014. After passing of their matrimonial life, the husband of the appellant/respondent demanded motorcycle from father-in-law, who did not fulfill the same, as a result of which, the respondent harass the appellant. Thereafter, the petition under Section 13 of the Hindu Marriage Act, 1955 was filed registered as Regular Suit No.48 of 2015 in the Court of Principal Judge, Family Court, Bahraich. In the said matter, on 23.01.2015, the compromise deed was filed by the parties before the court below and on 23.01.2015, the court below on the said compromise, passed an order, which reads as under :

“lqygukek mHk; i{ksa }kjk LosPNk ls nkf[ky fd;k x;k gSA lqygukek ij yxs QksVks dks ns[kdj mHk; i{kksa us ,d nwljs dks ifr iRuh ds :i esa rlnhd fd;k A lqygukek rlnhd fd;k x;kA”

Thereafter, on the same day, the Principal Judge, Family Judge, Bahraich/Court below, on the basis of the compromise deed, decided the Regular Suit No.48 of 2015 vide judgment and decree dated 23.01.2015, which reads as under :-

“izkFkZuki }kjk Jherh fuf/k lksuh o ioudqekj bl vk’k; dk fn;k x;k gS fd lqygukek mijksDr Lohdkj djds eqdnek lekIr djus dh d`ik fd;k tk;A

;kph Jherh fuf/k lksuh izkFkZuki ij yxk foi{kh iou dqekj dk QksVks ns[kdj dgk fd ;g esjs ifr dk QksVks gSA foi{kh iou dqekj us Jherh fuf/k lksuh dk QksVks ns[kdj dgk fd ;g esjh iRuh dk QksVks gSA

lqygukek esa mHk; i{k vkil esa lqygukek nkf[ky djds dFku fd;k gS fd i{kdkjksa ds e/; vkilh ysunsu ds mijkUr lEcU/k foPNsn dj fy, gSaA nksuksa i{kksa ds e/; fdlh izdkj dk fookn ugha gS] ,d nwljs ls lEcU/k foPNsn ds mijkUr vyx vyx jgdj thou ;kiu djus ds fy, Lora gSA okfnuh ,oa izfroknh ds e/; vc fdlh izdkj dk lEcU/k ugha jg x;k gSA U;k;ky; }kjk lqygukek rlnhd fd;k x;kA

;kph Jherh fuf/k lksuh ,oa foi{kh iou dqekj mifLFkr gSA U;k;ky; ds le{k lqygukek rlnhd fd;k x;kA lqygukek fof/k ds foijhr ugha gSA vr,o lqygukek ds vk/kkj ij eqdnek fu.khrZ fd;s tkus ;ksX; gSA

vkns’k

lqygukek ds vk/kkj ij okn dk fuLrkj.k fd;k tkrk gSA”

The judgment and decree dated 23.01.2015 passed by Principal Judge, Family Court, Bahraich in Regular Suit No.48 of 2015 has been challenged by the appellant/plaintiff on the ground that the appellant has not filed any petition under Section 13 of Hindu Marriage Act, 1955 and the compromise deed is forged and fabricated.

The said fact has been disputed by learned counsel for the respondent.

In order to decide the point in issue i.e. (i) whether the decree passed by the court below on the basis of compromise is sustainable and (ii) whether the compromise on which decree of the court below is based, is doubtful, we feel appropriate to go through the provisions of Order XXIII Rule 3 C.P.C., which reads as under :

Compromise of suit – Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit] :

Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrieved at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.”

Further, 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.

Section 13-B of the Hindu Marriage Act, 1955 is reproduced herein-below :-

“13-B. Divorce by mutual consent. – (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district curt by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the SectionMarriage Law (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

A Division Bench of this Court has taken into consideration the provisions of Section 13-B of the Hindu Marriage Act, 1955 in First Appeal No.227 of 2018 “SectionSmt. Pooja vs. Vijay Chaitanya” in the order dated 06.04.2018, observed as under :-

“The first part of the provision of Section 13-B of Hindu Marriage Act, 1955 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 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.

In the case of SectionHitesh Bhatnagar vs. Deepa Bhatnagar (2011) 5 SCC 234, the Supreme Court has 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 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.

In the case of SectionSmt. 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 SectionHindu 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 SectionHindu 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 the case of Sushama3 a single Judge of the Bombay High Court (Nagpur Bench) in context with Section 28 of the Hindu Marriage Act has held as under:

“11. Legislature has cast obligations upon Court entertaining the proceedings under Sectionsection 13-B to record a finding that consent for divorce has not been obtained by force, fraud or undue influence. Thus legislature has visualised that there may be a case in which consent for divorce may be obtained and decided to provide a safeguard against abuse of this provision. Hence, obligation has been cast upon the Court to verify the same, and to record a satisfaction that the consent given by the parties is free and voluntary. Thus having visualized abuse of such provision for grant of divorce by mutual consent by use of force, fraud etc., it cannot be accepted that legislature did not provide for a remedy to the spouse aggrieved in such matters. To hold that remedy of appeal is not available to such aggrieved spouse, will be rendering nugatory the exercise of obligation cast upon the Trial Court by the Legislature. I therefore find that the arguments of Advocate Shri De about tenability of appeal against such consent divorce decree are liable to be rejected.”

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 SectionSushama vs. Pramod 2009 (81) AIC 599 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.”

We are in agreement to the observation made by the Division Bench of this Court, quoted above.

In addition to the above said facts, we also take notice of the provisions of Section 14 of the Hindu Marriage Act, 1955, which reads as under :

“(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage :

Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”

After hearing learned counsel for the parties and considering record including the contents of the judgment dated 23.01.2015, under appeal, quoted above as well as taking into consideration the above settled principle of law on the point in issue, we are of the considered opinion that the judgment and decree dated 23.01.2015 passed by Principal Judge, Family Court, Bahraich in Regular Suit No.48 of 2015 is not in accordance with law. It is in view of the following reasons :

(a) The learned Court below decided the case in contravention to the provision of 14 of the Act of 1955. It is in view of the fact that marriage was solemnized on 01.12.2014 and within one year of marriage, the court below entertained and decided the suit on 23.01.2015.

(b) The court below without recording any satisfaction/finding as required under Section 13-B of the Act of 1955 and ignoring the period provided under Section 13-B of the Act, 1955 for getting a divorce for dissolution of marriage by mutual consent, decreed the suit.

(c) The court below, while decreeing the suit, did not consider the issue that whether the suit filed under Section 13 of the Act, 1955 can be decided on the basis of compromise.

In view of the above, we are of the view that the judgment and decree dated 23.01.2015, under appeal, based on compromise is unsustainable and the compromise, on which the judgment and decree dated 23.01.2015 is based, is doubtful.

Accordingly, the appeal is allowed and the judgment and decree dated 23.01.2015 passed by Principal Judge, Family Court, Bahraich in Regular Suit No.48 of 2015 is set aside. The matter is remanded back to the Principal Judge, Family Court, Bahraich to decide the same after taking into consideration the observations made herein above expeditiously.

Office is directed to send the lower court record forthwith.

(Saurabh Lavania,J.) (Anil Kumar,J.)

Order Date :- 10.12.2019

Mahesh