JUDGMENT : 1. Heard Sri Srijan Mahrotra, learned counsel for the applicant-defendant-appellant / wife and Sri Anil Sharma, learned Senior Advocate assisted by P.K. Rai, learned counsel for the plaintiff-respondent / husband. 2. This appeal has been filed praying to set aside the judgement and order dated 11.04.2008 in Misc. Case No. 105 of 1999 (Smt. Usha Kiran Rai vs. Umesh Chandra Rai and others) arising from H.M. Petition No. 361 of 1998 (Umesh Chandra Rai vs. Smt. Usha Kiran Rai) passed by the Principal Judge, Family Court, Varanasi, whereby the application 3-C under Order IX Rule 13 of C.P.C. filed by the applicant-appellant / wife for recalling of the judgement and decree passed in H.M. Petition No. 361 of 1998 dated 31.05.1999, has been rejected. 3. Original record of the court below relating to afore-noted cases have been received and notified in this Court on 14.12.2018 but the parties have not yet filed paper book. 4. Both the parties have perused the record of the court below and with the consent of learned counsel for the parties, this appeal is being finally heard without paper book. Facts : 5. Briefly stated the facts of the present case are that the appellant herein and the deceased-respondent Umesh Chandra Rai were married on 22.04.1984 according to Hindu rites and rituals at Varanasi. No children was born to them from their wedlock. The applicant / appellant herein was lecturer and subsequently promoted as reader / professor in the department of Management Studies, B.H.U., Varanasi. 6. Allegedly, the Matrimonial Petition No. 361 of 1998 (Umesh Chandra Rai vs. Smt. Usha Kiran Rai) under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955) was filed on 03.11.1998 by the deceased-plaintiff / husband Umesh Chandra Rai through his counsel Sri M.L. Rai Advocate jointly with the counsel Sri Prem Shankar Pandey as alleged counsel for the applicant-appellant, namely, Usha Kiran Rai. The aforesaid application bears signature of the deceased-plaintiff-respondent/husband and also the alleged signature of the applicant-appellant. The aforesaid application was not supported by any affidavit. These facts are evident from the original record of the court below. 7. As per order sheet entry dated 03.11.1998, the Presiding Officer directed the case to be presented after six months. As per order sheet entry dated 03.05.1999, the applicant-appellant / wife was not present but the deceased-plaintiff-respondent / husband was present. These facts are evident from the original record of the court below. 7. As per order sheet entry dated 03.11.1998, the Presiding Officer directed the case to be presented after six months. As per order sheet entry dated 03.05.1999, the applicant-appellant / wife was not present but the deceased-plaintiff-respondent / husband was present. As per order sheet entry dated 12.05.1999, a stay application 8-C was filed which was directed to be presented on 04.08.1999 for further order. Perusal of the alleged application 8-C dated 12.05.1999 shows that it is an adjournment application and not a stay application. As per order sheet entry dated 15.05.1999 an application to expedite the case was filed on which the Presiding Officer passed the order as under :- “None present. ….............. Put up on 18.05.1999.” 8. As per order sheet entry dated 18.05.1999, Presiding Officer was on leave and none was present, therefore, the next date was fixed for 04.08.1999. Thereafter, the last order sheet entry is dated 26.05.1999 in which it is mentioned that the application has been filed for early disposal of the case and therefore, it is ordered to put up on 31.05.1999. Thereafter, there is no entry in the order sheet of the aforesaid case No. 361 of 1998. 9. However, the original record contains an order of the Judge Family Court, Varanasi dated 31.05.1999 which is reproduced below :- ^^fnukad% 31 ebZ] 1999 bZ0 vkns'k ;kph mifLFkr gSA ;g ;kfpdk mes'k pUnz jk; rFkk Jherh Å"kk fdju jk; us la;qDr #i ls /kkjk&13 ch] fgUnw fookg vf/kfu;e ds varxZr fookg foPNsn gsrq fnukad 3-11-98 dks lafLFkr fd;k FkkA f}rh; ekslu ij fnukad 3-5-99 dks iqu% ÁLrqr gqbZA i{kdkjksa ds mifLFkr u gksus ij 12-5-99] 15-5-99 rFkk 18-5-99 dks is'k gqvkA ÁR;fFkZuh U;k;ky; esa mifLFkr gqbZ vkSj fnukad 26-5-99 dks la;qDr #i ls ^10x* ÁkFkZuk i= ij iqu% fn;k x;k fd ;kph o ÁR;fFkZuh esa oSpkfjd oSeuL;rk bl dnj dh mRiUu gks pqdh gS fd mudk ,d lkFk jgdj nkEiR; thou fuHkkuk ukeqefdu gSA eSaus i{kdkjksa dks lquus ds mijkUr bl fu"d"kZ ij igqapk gwWa fd ;kph o ÁR;fFkZuh ds e/; vc lEcU/k lq/kjus dh dksbZ lEHkkouk ugha gSA vr% ;kfpdk Lohdkj fd, tkus ;ksX; gSA ;kfpdk varxZr /kkjk&13ch] fgUnw fookg vf/kfu;e Lohdkj dh tkrh gSA ;kph mes'k pUnz jk; rFkk ÁR;fFkZuh Jherh Å"kk fdju jk; dk oSokfgd lEcU/k ,rn}kjk foPNsn fd;k tkrk gSA^^ 10. Perusal of the original record of the court below as received in this Court and perused by both the learned counsel for the parties, reveals the following facts :- (i) The application under Section 13-B registered as Case No. 361 of 1998 is not supported by any affidavit. (ii) As per order sheet, the applicant-appellant / wife was never present before the court below. (iii) The application under Section 13-B was filed by Sri M.L. Rai, Advocate of the deceased-plaintiff-respondent / husband of the applicant and it was presented by one Sri Prem Shankar Pandey, Advocate allegedly the counsel for the applicant-appellant herein. (iv) As per order sheet entry dated 15.05.1999, none was present and yet on the side of the order sheet there is signature allegedly of the applicant-appellant. (v) By the alleged signature of applicant-appellant herein application under Section 13-B of the Act, 1955 filed in the Court was prayed to be accepted whereas the order sheet entry dated 03.05.1999 records that the applicant-appellant herein was not present. (vi) In para (3) of application 9-C filed by the counsel for the deceased-plaintiff-respondent /husband dated 15.05.1999, both the parties were stated to be present in the Court in person whereas the order sheet entry dated 15.05.1999 clearly records that none is present. (vii) The application 10-C dated 26.05.1999 was filed in person by the deceased-plaintiff-respondent / husband stating that the entire proceedings in the case has been completed and merely order is to be passed but the date has been fixed for 04.08.1999 and therefore, the case may be decided expeditiously. Surprisingly, the signature of deceased-plaintiff-respondent / husband, namely, Umesh Chandra Rai was allegedly identified by Sri Prem Shankar Pandey, Advocate who was the alleged counsel of the applicant-appellant herein (wife). (viii) The order dated 31.05.1999 does not comply with any of the mandatory requirements of Section 13-B (2) of the Act, 1955. Even as per this order, merely, the deceased-plaintiff-respondent / husband was present. 11. According to the applicant-appellant / wife when she came to know about the aforesaid alleged judgement and decree of divorce dated 31.05.1999 under Section 13-B of the Act, 1955, she filed an application dated 22.07.1999 which was registered as Misc. Case No. 105 of 1999. Even as per this order, merely, the deceased-plaintiff-respondent / husband was present. 11. According to the applicant-appellant / wife when she came to know about the aforesaid alleged judgement and decree of divorce dated 31.05.1999 under Section 13-B of the Act, 1955, she filed an application dated 22.07.1999 which was registered as Misc. Case No. 105 of 1999. In her application, in paragraph 11, its sub paragraphs and paragraphs 20, 21, 22, she has specifically raised several points and alleged that she was living along with the plaintiff-respondent, the alleged application under Section 13B was not filed by her rather it was the result of collusion and fraud committed by the respondent / husband. She neither knew nor engaged one Sri Prem Shankar Pandey, Advocate as her counsel and the alleged vakalatnama does not bear her signature rather it is forged. 12. Learned counsel for the appellant reiterates the grounds taken in the appeal and submits that the entire decree dated 31.05.1999 obtained by the deceased-plaintiff-respondent was totally collusive and fraudulent and the applicant-appellant never had any knowledge of the said case nor she appeared either personally or through counsel, therefore, the court below has committed a manifest error of law and facts to reject her application under Order IX Rule 13 C.P.C., by the impugned judgment and order dated 11.04.2008. 13. Learned counsel for the respondents support the impugned judgment and order dated 11.04.2008. Discussion and Finding : 14. We have carefully considered the submissions of learned counsels for the parties and perused the records of the appeal and the original records of the court below as received in this court as aforementioned. 15. During the pendency of the aforesaid Misc. Case No. 105 of 1999, the plaintiff-respondent / husband died on 13.08.2003 and as such the respondent nos. 1/1 and 1/2 were substituted. Ultimately, the aforesaid Misc. Case No. 105 of 1999 was dismissed by judgement and order dated 11.04.2008. 16. Aggrieved with the judgement and order dated 11.04.2008 in Misc. Case No. 105 of 1999 passed by Principal Judge, Family Court, Allahabad, the applicant /appellant herein has filed the present appeal. 17. 1/1 and 1/2 were substituted. Ultimately, the aforesaid Misc. Case No. 105 of 1999 was dismissed by judgement and order dated 11.04.2008. 16. Aggrieved with the judgement and order dated 11.04.2008 in Misc. Case No. 105 of 1999 passed by Principal Judge, Family Court, Allahabad, the applicant /appellant herein has filed the present appeal. 17. The facts as emerge from the records as briefly noted in paragraphs 9 and 10 above leaves no manner of doubt that the applicant-appellant / wife never appeared before the Judge Family, Court, who passed the judgement dated 31.05.1999 under Section 13B of the Act, 1955 and granted decree of divorce by alleged mutual consent. Thus, the judgement dated 31.05.1999 and the decree passed by the Court below was an ex-parte. Neither any summon was issued to the appellant nor alleged application under Section 13B was supported by an affidavit of the appellant. Thus, the appellant was not aware of the filing of the application under Section 13B of the Act, 1955. Therefore, the court below has committed a manifest error of law and fact to reject the application of the appellant herein under Order IX Rule 13 C.P.C. being Case No.105 of 1999. 18. In paragraph 9, we have reproduced the judgement dated 31.05.1999 passed by the court below granting decree of divorce by mutual consent. In the afore-quoted judgement, the court below has mentioned that the appellant herein appeared on 26.05.1999 and jointly filed Application 10C. We have perused the Application 10C and we find that it does not bear signature of the appellant herein. We have also perused the order sheet from the original record and we find that the order sheet dated 26.05.1999 also does not bear signature of the appellant. 19. Section 13B has been explained by a Division Bench of this Court in First Appeal No. 761 of 2022 (Kanhaiya Kanaujiya vs. Tara Devi) decided on 18.10.2022 (Paras 6, 7 and 9) laying down the law as under : 6. 19. Section 13B has been explained by a Division Bench of this Court in First Appeal No. 761 of 2022 (Kanhaiya Kanaujiya vs. Tara Devi) decided on 18.10.2022 (Paras 6, 7 and 9) laying down the law as under : 6. We are of the view that a petition under Section 13-B of the Act, 1955 for dissolution of marriage by consent, may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately from one year or more and they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. After the petition under Section 13-B(1) has been jointly presented by parties to a marriage together then sub-section (2) of Section 13-B of Act, 1955 shall come into play. 7. As per the provisions of Section 13-B(2), a second motion of both the parties can be made not earlier than 6 months after the date of presentation of the petition under sub-section (1) and not later than 18 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. 9. The most important requirement for a grant of decree of divorce by mutual consent is free consent of both the parties. Unless there is a complete agreement between the husband and the wife for dissolution of marriage and unless the Court is completely satisfied, it cannot grant a decree by mutual consent. 20. Thus, as per Section 13B of the Act, 1955, for grant of decree of divorce by mutual consent, the mandatory requirement are as under :- (a) The petition under Section 13B of the Act, 1955 for dissolution of marriage by consent must be present by both the parties to a marriage together, on the ground that they have been living separately from one year or more and have not been able to live together and they have mutually agreed that the marriage should be dissolved. (b) A second motion of both the parties under sub-Section (2) of Section 13B has to be made. (c) A party to the petition has not withdrawn his/ her consent within the specified 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 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 decree. (d) The most important requirement for grant of a decree of divorce by mutual consent is free consent of both the parties. Unless there is complete agreement between the husband and wife for dissolution of marriage and unless the court is completely satisfied, it cannot grant a decree of divorce by mutual consent. 21. Facts of the case as emerging from the records and briefly summarized in paragraph-10 above, lead to an irresistible conclusion that the applicant-appellant/ wife never appeared before the court below in Matrimonial Case No.361 of 1998 under Section 13B nor the alleged joint application was supported by any affidavit of the applicant. There is a clear contradiction between the order sheet entry and the applications moved by the deceased-plaintiff respondent. The facts as summarized on the basis of original records in paragraph-10 of this judgment and the manner in which the order dated 31.05.1999 under Section 13B of the Act, 1955 was passed, leave no manner of doubt that it was an ex parte order passed by the court below without recording its satisfaction, without hearing the parties and without making necessary inquiry about the truthfulness of the averments in the petition under Section 13B. Thus, prima facie, a fraud appears to have been practiced so as to obtain the decree of divorce by mutual consent under Section 13B of the Act. 22. This court cannot act to protect perpetuation of legal fraud. The courts are obliged to do justice. Fraud and justice never dwell together (Frans Et Jus Nunquam Cohabitant). This maxim has never lost its temper over all the centuries. The courts are not meant to permit dishonesty even on technical pleas. 22. This court cannot act to protect perpetuation of legal fraud. The courts are obliged to do justice. Fraud and justice never dwell together (Frans Et Jus Nunquam Cohabitant). This maxim has never lost its temper over all the centuries. The courts are not meant to permit dishonesty even on technical pleas. Dishonesty cannot be permitted to bear the fruit and benefit to the persons who played fraud or misrepresented or suppressed facts and in such circumstances, the court should not allow perpetuation of fraud by entertaining the technical pleas. The legislature never intends to guard fraud. Law is manifestation of principles of justice, equity and good conscience. 23. The principles as stated in preceding paragraphs are supported by the law laid down by the Hon'ble Supreme Court in the case of Vodafone International Holding BV vs. Union of India and another, (2012) 6 SCC 613 , United India Insurance Company Ltd. vs. B. Rajendra Singh and others, JT 2000(3) SC 151, Ram Chandra Singh vs. Savitri Devi and others, 2003 (8) SCC 319 , S.P. Chengal Varaya Naidu (dead) by L.Rs vs.Jagannath (dead) by L.Rs and othes, AIR 1994 SC 853 , Jainendra Singh vs. State of U.P., 2012(8) SCC 748 . 24. Thus, the discussion made above leads to an irresistible conclusion that the applicant-appellant / wife was not aware of the judgement dated 31.05.1999 and decree of divorce under Section 13B of the Act, 1955. The said judgement is an ex-parte judgement. The appellant has not given her consent for divorce under Section 13B of the Act, 1955. Therefore, the court below has committed a manifest error of law and fact to reject the application of the applicant-appellant herein under Order IX Rule 13 C.P.C. being Misc. Case No. 105 of 1999. Consequently, the impugned judgement and order dated 11.04.2008 in Misc. Case No. 105 of 1999 (Smt. Usha Kiran vs. Umesh Chandra Rai) passed by Principal Judge, Family Court, Varanasi rejecting the Application 3C under Order IX Rule 13 C.P.C., cannot be sustained and is, hereby, set aside. 25. For all the reasons aforesated, the impugned judgement and decree dated 11.04.2008 in Misc. Case No. 105 of 1999 arising from H.M. Petition No. 361 of 1998, passed by the Principal Judge, Family Court, Allahabad, is hereby set aside. The appeal is allowed. 25. For all the reasons aforesated, the impugned judgement and decree dated 11.04.2008 in Misc. Case No. 105 of 1999 arising from H.M. Petition No. 361 of 1998, passed by the Principal Judge, Family Court, Allahabad, is hereby set aside. The appeal is allowed. The application 3-C filed by the applicant-appellant herein under Order IX Rule 13 C.P.C. is hereby allowed. Consequently, the judgement and decree dated 31.05.1999 passed in Misc. Case No. 361 of 1998 (Umesh Chandra Rai vs. Smt. Usha Kiran Rai) stands recalled and the application under Section 13B being Case No. 361 of 1998 stands dismissed. 26. There shall be no order as to costs.