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2015 DIGILAW 2120 (RAJ)

Chandan Kanwar v. Balwant Singh

2015-12-18

AJAY RASTOGI, J.K.RANKA

body2015
JUDGMENT : Ajay Rastogi, J. Instant misc. appeal has been filed by the appellant wife u/s.19 of the Family Courts Act, 1984 assailing order dated 4.6.2014 passed by the Ld. Family Court dismissing her application for recalling the judgment & decree dated 18.11.2013 granting decree of divorce u/s.13B of the Hindu Marriage Act, 1955. 2. Appellant wife and respondent husband got married on 10.2.2012 as per Hindu rites & ceremonies and there is no issue from this wedlock. The parties after marriage could not live together for multifold reasons. At one point of time, the husband served legal notice through his counsel dated 21.12.2012 asking wife either to restore his restitution of conjugal rights or legal action may be taken against her available under the law. At the same time, the appellant wife also lodged FIR-44/2013 at PS Mahila Thana (West), Jaipur 44/2013 on 11.2.2013 for the offences u//ss.498A, 406, 303 IPC but on compromise arrived at between the parties FR was submitted on 20.3.2013. 3. Thereafter, both the parties appeared and joint application u/s.13B of the Act duly signed by them was presented along with their affidavits annexed thereto before the Family Court No.1, Jaipur Metro, which came to be registered on 8.5.2013 and the Ld. Family Court after recording satisfaction that conciliation is not possible posted the matter to be listed after six months on 14.11.2013 which is the statutory requirement under the Act. 4. It was stated in their joint application that they are living separately since 20.4.2012 for more than one year which is the statutory requirement for filing application u/s.13B of the Act and also stated that the appellant has received a sum of Rs.3 lacs in the form of permanent alimony and all the disputes have been finally settled. 5. Since the cooling period is of six months, the ld. Family Court posted the matter for 14.11.2013 on which date, both the parties appeared and recorded their presence, but because of the presiding officer being on leave, it was adjourned for 18.11.2013. On the said date also, both the parties appeared in person and participated in the proceedings and the ld. Family Court after recording statements of the parties and its due satisfaction granted decree of divorce by consent u/s.13B of the Act on 18.11.2013. 6. On the said date also, both the parties appeared in person and participated in the proceedings and the ld. Family Court after recording statements of the parties and its due satisfaction granted decree of divorce by consent u/s.13B of the Act on 18.11.2013. 6. Being dissatisfied with the judgment & decree of divorce granted on consent u/s.13B of the Act, the appellant approached this Court assailing the judgment & decree by filing appeal u/s.19 of the Family Courts Act and her bone of contention was that the decree of divorce by consent has been obtained by the respondent husband by fraud but after making submission at motion stage, the counsel withdrew the appeal with liberty to make an application for recalling the judgment & decree as evident from the order dated 6.5.2014. 7. Thereafter, the appellant moved application for recalling of the judgment & decree dated 18.11.2013 before the Ld. Family Court, No.1, Jaipur and that came to be dismissed on 4.6.2014 and being dissatisfied with the judgment & decree dated 18.11.2013 and also the order dated 4.6.2014 dismissing the application for recalling the judgment & decree, the appellant has approached this Court by filing instant misc. appeal. 8. Main thrust of submission of counsel for the appellant is that the judgment & decree has been obtained by the respondent husband by practicing fraud upon the court and is nullity and non est in the eye of law and deserves to be recalled and the application filed for recalling of judgment & decree has been rejected by the Ld. Family Court without assigning cogent reasons vide order dated 4.6.2014 and that requires interference of this Court. 9. The respondent while supporting the judgment & decree passed by the Ld. Family Court dated 18.11.2013 & also the order later on passed on application filed for recalling of the said order dated 4.6.2014 submits that cogent reasons have been assigned by the Ld. Family Court and the present appeal is not maintainable particularly when the judgment & decree has been granted by the Ld. Family Court on consent of the parties u/s.13B of the Act. 10. So far as maintainability of the appeal is concerned, ordinarily right of appeal is a creature of statute and substantive right and not a part of the procedure. Family Court on consent of the parties u/s.13B of the Act. 10. So far as maintainability of the appeal is concerned, ordinarily right of appeal is a creature of statute and substantive right and not a part of the procedure. However, Section 28 of the Hindu Marriage Act, 1955 provides right of appeal and all original decrees made by the Courts under the Act are appealable. These decrees may be consent decrees or otherwise. At the same time, u/S 19(1) of the Family Court Act, 1984, appeal can be preferred against any judgment or order of a Family Court to the High Court but under sub-Section (2) of Section 19, against the decree or order passed by the Family Court with the consent of the parties, appeal is not maintainable and in the instant case, decree of divorce is by mutual consent and in view of Section 19(2) may not be appealable. But either party has not so much vehemently addressed on maintainability and what will be the effect, if the decree of divorce by consent has been obtained by fraud or misrepresentation as alleged and what will be its effect in availing right of appeal which is available u/s.28 of the Act vis-a-vis Section 19(2) of the Family Courts Act and that being so, we leave this question open to be examined in some other appropriate proceedings. 11. Before we proceed to examine the matter, it may be relevant to quote Section 13B of the Act which reads ad infra- 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 Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (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 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 mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised 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. 12. If we look at the provision where the parties can jointly file application seeking divorce by mutual consent inserted by Act 68 of 1976 subject to the provisions of the Act petition for dissolution of marriage for decree of divorce can be presented jointly by both the parties to a marriage on fulfilment of certain conditions provided under the mandate of law and appeal against decree of divorce by mutual consent distinctly is not merely on consent of the parties, for the family 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. 13. In sub-section (1) of Section 13B of the Act, a joint petition by the spouses can be presented to the Family 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 solemnised and whether the averments in the petition are true and further if there are no impediments in the way as conceived of in Section 23(1)(bb) that such consent has not been obtained by force, fraud or undue influence. 14. It is then that the Court enters upon an enquiry into the facts whether the marriage has been solemnised and whether the averments in the petition are true and further if there are no impediments in the way as conceived of in Section 23(1)(bb) that such consent has not been obtained by force, fraud or undue influence. 14. 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. 15. As pointed earlier, both the sub-sections of the said provision operate at different points of time. The first one operates when presenting the petition. The second one operates when deciding the petition. At both points of time, both parties must present and pursue it. At the first point of time, the parties jointly have to present a petition on grounds: (i) they have been living separately for a period of one year or more before the presentation of the petition; (ii)they have not been able to live together; and (iii) they have mutually agreed that the marriage should be dissolved. 16. The Court at that stage except for receiving and registering the petition takes no notice of it. For six months, the petition remains dormant. After six months if the parties remain consensual they move the Court under sub-section (2). They cannot do so later than 18 months after the presentation of the petition. If the petition is withdrawn in the meantime, the Court has nothing to do in the matter. It is only within that period, if the petition is pending, that the court embarks on an enquiry to be satisfied on the following particulars : (a) Was the marriage solemnised between the parties? (b) Were the parties living separately for more than one year before the presentation of the petition? (c) Were they not able to live together at the time of the presentation of the petition and continue to live apart? (d) Was there mutual agreement of the dissolution of marriage arrived at before or at the time of the presentation of the petition ? And (e) that the averments made in the petition are true and conditions under Section 23 of the Act are fulfilled; 17. (d) Was there mutual agreement of the dissolution of marriage arrived at before or at the time of the presentation of the petition ? And (e) that the averments made in the petition are true and conditions under Section 23 of the Act are fulfilled; 17. It is only then that the Court grants decree of divorce by mutual consent. In other words, amongst other factors, the Court will exclude the possibility of the consent of either party being obtained by force, fraud or undue influence and see through, if there is any collusion. 18. There is a world of difference between consent and collusion. Whereas consent between two people is a state of being of the same mind, collusion between the two is a secret agreement to deceive. It is an effort to mislead the Court from the true state of affairs. So, far goes with letter of the law. There cannot be two opinion about it that for grant of divorce in such case the court has to be satisfied about the existence of mutual consent between the parties on some tangible material which demonstrably disclose such consent. At the same time, if the decree has been obtained by fraud which is an intrinsic, collateral act, indeed vitiates the most solemn proceedings of courts of justice and if it has been obtained by manifest fraud, it has to be treated as nullity. 19. It is true that a petition for divorce is not like any other commercial suit. A divorce not only affects the parties and their families but the society also feels its reverberations. Stress should always be on preserving the institution of marriage. That is the requirement of law. One may refer to the Objects and Reasons which led to setting up of Family Courts under the Family Courts Act, 1984. For the purpose of settlement of family disputes emphasis is laid on conciliation and achieving socially desirable results and eliminating adherence to rigid rule of procedure and evidence. 20. Keeping in view the principles into consideration, if we examine the facts of instant case and as already noticed by us, the marriage between the parties was solemnised on 10.2.2012, they jointly appeared and filed application u/s.13B of the Act duly signed by both the parties supported with their affidavits and presented before the ld. 20. Keeping in view the principles into consideration, if we examine the facts of instant case and as already noticed by us, the marriage between the parties was solemnised on 10.2.2012, they jointly appeared and filed application u/s.13B of the Act duly signed by both the parties supported with their affidavits and presented before the ld. Family Court on 8.5.2013 and it was stated that they are living separately for more than one year since 20.4.2012 and because of their temperamental differences it was not possible for them to continue their matrimonial relations and permanent alimony of Rs.3 lacs has been paid by the respondent husband to the appellant wife and nothing more remain to be settled between the parties and the Ld. Family Court on their joint application tried to conciliate between them which could not be materialised and after hearing the parties, the ld. Family Court posted the matter after six month which is the requirement of sub-section (2) of Section 13B of the Act for 14.11.2013 on that date both the parties appeared and recorded their presence but because of the presiding officer being on leave, the matter was adjourned to 18.11.2013, on the said date the ld. Family Court recorded the statement of both the parties, of which we have made a reference and after recording his satisfaction that the averments are true and conditions of Section 13B are being fulfilled, accepted their application and consented decree of divorce was granted on 18.11.2013. 21. The entire genesis of the application dated 30.4.2014 which at the later stage was filed before the Ld. Family Court for recalling of the order dated 18.11.2013 granting decree of divorce by consent was that the respondent has extra marital relations and the averment in the original application seeking divorce u/s.13B of the Act was that they were residing separately since 20.4.2012 which is factually incorrect and to support thereof it was averred that in the legal notice which was served by the respondent husband, it was stated that she left her matrimonial home on 10.12.2012 and according to her on the date of presentation of the application i.e. 8.5.2013, the requirement of the parties living separately for a period of one year was not complied with and on this count the decree of divorce according to her has been obtained by misrepresentation and fraud. 22. 22. At the same time, this fact is not disputed by the appellant that she has signed the application duly supported with her own affidavit and presented by recording presence before the Ld. Family Court on 8.5.2013 and also appeared before the Family Court thereafter on 14.11.2013 and on 18.11.2013 and after recording her statement and satisfaction of the Presiding Officer decree of divorce by consent was granted by the Ld. Family Court. It is also not disputed about the payment of permanent alimony as referred to in their application. 23. In nutshell, this Court can take notice that the parties in their joint application filed u/s.13B of the Act and presented before the Family Court dated 8.5.2013, admitted that they are living separately since 20.4.2012, reference of which has been made in para 3 of their joint application submitted before the Family Court. 24. Mere allegation of fraud or misrepresentation in itself may not be sufficient, unless established by some tangible evidence on record in support thereof and suffice it to say the fact that they were not living separately since 20.4.2012 as alleged even if is taken at its face value, still it cannot be said that the decree has been obtained by fraud and misrepresentation, on the contrary, it manifest from the record that the parties were not holding good relations and there was ongoing matrimonial disputes between them and the case u/s.498A, 406, 313 IPC at one stage was registered at the instance of the appellant wife which has been finally compromised and this fact also cannot be ruled out that the marriage could not pull out because of their matrimonial differences and in these facts & circumstances, the parties jointly submitted application on fulfilment of statutory conditions of the Act and recorded their statements in the court proceedings on 18.11.2013 and taking note thereof decree of divorce by consent has been granted by the Ld. Family Court in full compliance of mandate of Section 13B r/w Section 23 of the Act. 25. Even the application which was later on filed by the appellant for recalling of the judgment & decree alleged to be obtained by fraud on mere premise that they were not living separately since 20.4.2012 is not sustainable and the Ld. Family Court in full compliance of mandate of Section 13B r/w Section 23 of the Act. 25. Even the application which was later on filed by the appellant for recalling of the judgment & decree alleged to be obtained by fraud on mere premise that they were not living separately since 20.4.2012 is not sustainable and the Ld. Family Court has assigned cogent reasons while rejecting the application for recalling judgment & decree under order dated 4.6.2014 and after we have heard the parties we could not subscribe the view that the decree has been obtained by fraud as prayed for by the appellant. The appeal is wholly devoid of merit and accordingly dismissed. Appeal dismissed.