Can an appeal be filed against mutual consent divorce for setting it...

Can an appeal be filed against mutual consent divorce for setting it aside?

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Question: Is it possible to file an appeal against a decree of divorce on the basis of mutual consent passed under Section 13-B of the Hindu Marriage Act? Can such decree of mutual consent divorce be set aside by the appellate court?

Answer: It is pertinent to point out that Section 28 of the Hindu Marriage Act specifically provides that: “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 decision of the court given in the exercise of its original civil jurisdiction.”

Since the decree of divorce on the basis of mutual consent is passed under the above Act under the provisions of Section 13-B, therefore a decree of mutual consent divorce should also be appealable. This should be quite clear.

However, sometimes, a doubt is raised on this issue in view of provisions of Section 96(3) of the Civil Procedure Code which lays down that “No appeal shall lie from a decree passed by the Court with the consent of parties”.

In this regard, it may be noted that Section 13-B(2) of the Hindu Marriage Act lays down that after the second motion is moved by both the parties, “…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”.

Thus, even in the case of mutual consent divorce, the court had to be satisfied after hearing the parties and making appropriate enquiries that the averments in the petition are true. Since petition for mutual consent divorce necessarily implies consent of both the parties, therefore averments in the petition being true means that the court has to satisfy itself that both the parties have given their free consent.

Further, Section 23(1)(bb) of the Hindu Marriage Act requires that in any proceeding under this Act, whether defended or not, the court should be satisfied that “when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or under influence”. This clearly implies that the court must be satisfied that in the case of a divorce being sought on the ground of mutual consent, consent of the parties has not been obtained by force, fraud or undue influence. If consent of one or both of the parties has been obtained by force, fraud or undue influence, then such mutual consent cannot be said to be a willing consent.

In view of these reasons, there should be a remedy available to the parties if these requirements of mutual consent divorce have not been fulfilled.

In this regard, it may be noted that in the case of Krishna Khetarpal v. Satish Lal, AIR 1987 P&H 191, it was held by a division bench of the Punjab & Haryana high court held that:

“An appeal against the decree of divorce by mutual consent distinctly is not merely on consent of the parties, for the matrimonial Court is involved in decision making so that it accords not only with the provisions of section 13B of the Act but also section 23 of the Act. In sub-section (1) of section 13B of the Act, a joint petition by the spouses can be presented to the District Court on the ground that they have been living separately for a period of one year or more before the presentation of the petition and that they have not been able to live together and further that they have mutually agreed that the marriage should be dissolved. The petition then lies in hibernation for six months and under sub-section (2) both the parties have to activate it on motion to the Court. It is then that the Court enters upon an enquiry into the facts whether the marriage has been solemnized and whether the averments in the petition are true and further there are no impediments in the way as conceived of in section 23 and in particular of sub-section (1)(bb) that such consent has not been obtained by force, fraud or undue influence. Thus, a decree for divorce by mutual consent is not based merely on mutuality of the consenting parties but the court’s involvement in 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 advisedly been provided. Besides, section 21 of the said Act says that subject to other provisions contained in the said Act and to such rules as the High Court may make in this behalf all proceedings under the said Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. Thus the proceedings in the appeal are to be regulated as far as may be, by the Code of Civil Procedure without altering the substantive right of appeal to the parties concerned. On the above analysis and differentiation, the conclusion is inescapable that an appeal against a consent decree under section 13B of the Act is appealable under section 28 of the Act and sub-section (3) of section 96 of the Code of Civil Procedure is no bar.”

Likewise, it is pertinent to point out that in the case of Sushama v. Pramod, (2009) 4 Mah LJ 81 : AIR 2009 Bom 111, the Bombay High Court has held as under:

“Legislature has cast obligations upon Court entertaining the proceedings under section 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.

Accordingly, the Bombay high court held that appeal against the mutual consent decree was legally maintainable.

Similarly, another Division Bench of Punjab & Haryana High Court in the case of Charanjit Singh Mann v. Neelam Maan, AIR 2006 P&H 201, and a Division Bench of Jharkhand High Court in the case of Hina Singh v. Satya Kumar Singh, AIR 2007 Jharkhand 34, have also held that appeal against decree of divorce by mutual consent is maintainable.

Thus, the answer to your question would be that an appeal against a decree of mutual consent divorce may be legally maintainable.

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