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2014 DIGILAW 998 (KAR)

D. S. Chethan v. N. T. Manjushree

2014-11-17

S.ABDUL NAZEER

body2014
Judgment 1. Though this matter is listed for orders, by consent of the learned counsel for the parties, it is taken up for final hearing, heard and disposed of by this order. 2. The respondent herein was married to the petitioner on 05.09.2010 at Eshwari Kalyana Mantapa at Chitradurga. Differences arose between them after the marriage. Therefore, they started living separately after about six months of the marriage. They filed a joint petition under Section 13-B of the Hindu Marriage Act, 1955, seeking dissolution of the marriage by mutual consent in M.C.No.111/2012 on the file of the Family Court at Davangere. The petition was allowed on 12.10.2012 and the marriage solemnized on 5.9.2010 was dissolved and decree of divorce was passed. 3. The respondent filed a suit O.S.No.23/2012 on the file of the Family Court, Davangere, to declare that the aforesaid judgment and decree is null and void. 4. In the said case, respondent filed an application -IA No.II under Order VII Rule 11(d) of Code of Civil Procedure (for short, CPC), for rejection of the plaint. The Family Court has rejected the application by order at Annexure-G dated 19.2.2014. The petitioner has called in question the validity of the said order in this writ petition. 5. Learned counsel for the petitioner would contend that the Family Court had passed a decree of divorce by consent at Annexure-B dated 12.10.2012. It is submitted that the provisions of Code of Civil Procedure are applicable to the Family Court having regard to Section 10 of the Family Courts Act, 1984. He draws my attention to Order XXIII Rule 3A of the CPC and submits that the suit filed by the respondent to set aside the decree was not maintainable. Therefore, the Court below ought to have rejected the plaint under Order VII Rule 11(d) of the CPC. 6. On the other hand, learned counsel for the respondent has sought to justify the impugned order. However, it is submitted that the respondent has already filed an application before the Family Court in M.C.No.111/2012 for recalling of the said judgment and decree, which is pending as of now. 7. I have carefully considered the arguments of the learned counsel made at the Bar and perused the materials placed on record. 8. However, it is submitted that the respondent has already filed an application before the Family Court in M.C.No.111/2012 for recalling of the said judgment and decree, which is pending as of now. 7. I have carefully considered the arguments of the learned counsel made at the Bar and perused the materials placed on record. 8. It is not in dispute that a consent decree of divorce was passed on 12.10.2012 dissolving the marriage of the petitioner with the respondent in M.C.No.111/2012. Thereafter, the respondent filed suit O.S.NO.23/2012 for declaration that the aforesaid decree was null and void. The application filed by the petitioner for rejection of the plaint under Order VII Rule 11(d) of the CPC was rejected by the Family Court. 9. Order 7 Rule 11 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. A plaint can be rejected where the suit appears from the averments made in the plaint to be barred by any law. It is settled that in order to reject the plaint, the statement in the plaint without any addition or subtraction must show that it is barred by any law in force without any doubt or dispute. 10. In Pushpa Devi Bhagat (D) by LR Vs. Rajinder Singh & Others -2006 (5) AIR Kar R 249, the Hon'ble Supreme Court has considered the position that emerges from the amended provisions of Order 23. It has been filed as under: "12. The position that emerges from the amended provisions of Order 23, can be summed up thus: (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC. (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1, Order 43. (iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A. (iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23." 11. (iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23." 11. It has been further held that the only remedy available to a party to a consent decree to avoid such consent decree is to approach the Court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the Court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because the consent decree is nothing but contract between the parties superimposed with the seal of approval of the Court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. 12. However, the question for consideration is; whether the provisions of C.P.C. are applicable to the proceedings before the Family Court. 13. Sub-Section (1) of Section 10 of the Family Courts Act, provides for the procedure to be followed by the Family Court which is 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)] before 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." 14. It is also clear that the order passed by the Family Court has the effect of a decree and is executable in the same manner as prescribed in the Code of Civil Procedure, which is clear from sub-section (1) of Section 18. 15. It is thus clear that the provisions of Code of Civil Procedure are applicable to the suits and proceedings before the Family Court. 16. A submission is made on behalf of the respondent that having regard to Section 20, the provisions of the Family Courts Act have overriding effect. 15. It is thus clear that the provisions of Code of Civil Procedure are applicable to the suits and proceedings before the Family Court. 16. A submission is made on behalf of the respondent that having regard to Section 20, the provisions of the Family Courts Act have overriding effect. Section 20 states that the provision of the Family Courts Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. This provision has no application because Section 10 itself states that the Civil Procedure Code is applicable to the suits and proceedings before a Family Court. Therefore, it is futile to contend that Order 23 Rule 3-A has no application to a proceeding before the Family Court. 17. It is thus clear that a consent decree of divorce cannot be challenged by filing a suit. The remedy open to the respondent is to file an application in the same suit in which compromise was recorded under Order XXIII Rule 3-A of the CPC. Therefore, the Court below ought to have rejected the plaint. 18. In the result, writ petition succeeds and it is accordingly allowed. The order dated 19.2.2014 in O.S.No.23/2012 on the file of the Family Court at Davangere, is hereby quashed. The application IA No. II filed by the petitioner in the suit is allowed and the plaint in O.S.No.23/2012, is hereby rejected. The Family Court is directed to decide the application filed by the respondent in M.C.No.112/2012 in accordance with law without being influenced by the observations made in the course of this order. 19. In view of the disposal of the writ petition as above, IA No.1/2014 does not survive for consideration and it is accordingly dismissed. No costs.