ORDER : Goutam Bhaduri, J. 1. The present appeal is preferred by the appellant challenging the judgment and decree dated 06.01.2020 passed by the learned Principal Judge, Family Court, Raipur in Civil Suit No.664/2019 in between Tarun Dahire vs. Smt. Sneha Dahire, whereby the application filed by the respondent husband under Section 13 (B) of the Hindu Marriage Act, 1955 has been allowed. 2. The Office has raised objection that the present appeal is not maintainable for the reason that it is barred under Section 19 (2) of the Family Court Act, 1984, as no appeal would lie from a decree or order passed by the Family Court with the consent of the parties. 3. The appearance of the respondent is already on record. 4. The facts of the case are that an application under Section 13 (B) of the Hindu Marriage Act, 1955 was filed by the appellant wife and the respondent husband before the Family Court, Raipur with averment that they were married on 09.11.2011 and out of their wedlock, a child was born on 26.08.2013. It was further pleaded that after sometime of the marriage and birth of the child, both husband and wife could not adjust with each other and fell into the differences of compatibility and the opinion. Consequently, they started living separately for last 6 years. Thereafter, an application was filed by husband and wife claiming mutual divorce under Section 13 (B) of the Hindu Marriage Act, 1955. It was further contended that it was agreed that the child begotten to them would be in the custody of the mother, whereas the paternity right would be protected. The wife also denounced her right to claim maintenance. Under the aforesaid grounds, the divorce was claimed. The learned Family Court on 06.01.2020 passed the judgment and decree of divorce in Civil Suit No.564/2019, which is under challenge in this appeal. 5. Learned counsel for the appellant wife would submit that though the application was filed for divorce by mutual consent, but the consent of the appellant wife did not subsist on the date when the judgment and decree was passed. He referred to Section 9 of the Family Courts Act, 1984 and would submit that Section 9 casts duty upon the Family Court to make all efforts for settlement between the parties. He referred to Section 9 of the Family Courts Act, 1984 and would submit that Section 9 casts duty upon the Family Court to make all efforts for settlement between the parties. In the instant case, initially though the consent of both the husband and the wife was recorded on 03.01.2020 and the case was fixed for 06.01.2020 for final order, but on 06.01.2020 again, the case was reopened and only the consent of the husband was recorded. Therefore, it would be against the spirit of Section 9 of the Family Courts Act, 1984 and no decree can be passed subsequently. 6. Per contra, learned counsel for the respondent husband would submit that the consent of the parties was already recorded on 03.01.2020 and it was a mere formality on the subsequent date and the Court was not bound to record statement or consent of the parties once having recorded. Resultantly, based on the previous consent of the parties, which was recorded on 03.01.2020 itself, the decree of divorce was passed. Therefore, the instant appeal would not be tenable as per Section 19 (2) of the Act, 1984, which bars an appeal in the event that consent decree is passed. 7. We have heard learned counsel for the parties at length and perused the records. 8. Perusal of the record would show that on 18.06.2019, a joint application was moved by the appellant wife and the respondent husband under Section 13 (B) of the Hindu Marriage Act, 1955 for divorce by mutual consent. The learned Family Court proceeded for settlement, however, it failed. The order sheet dated 03.01.2020 records the appearance of both husband and wife. The order sheet purports that both husband and wife contended that they cannot live together, thereafter their statement was recorded and the case was fixed for judgment on 06.01.2020. The order sheet dated 06.01.2020 would show that the case was again reopened and the consent of the husband was recorded, wherein he discloses that he cannot stay with the appellant wife and the efforts of conciliation failed. The order sheet would further show that when such consent was recorded, the wife was not present before the Family Court. 9. The order sheet dated 06.01.2020 would show that the case was again reopened and the consent of the husband was recorded, wherein he discloses that he cannot stay with the appellant wife and the efforts of conciliation failed. The order sheet would further show that when such consent was recorded, the wife was not present before the Family Court. 9. Perusal of both the order sheets dated 03.01.2020 & 06.01.2020 would show that when initially on 03.01.2020, the consent of both husband and wife was recorded and the case was fixed for judgment on 06.01.2020, the same may not amount a date of hearing as per the law laid down by the Hon’ble Supreme Court in the matters of Arjun Singh vs. Mohindra Kumar and others, AIR 1964 SC 993 and Bhanu Kumar Jain vs. Archana Kumar and another, (2005) 1 SCC 787 . However, the proceedings of the court below would show that the Family Court reopened the case again on 06.01.2020, thereby the case came within the ambit of “hearing” again. This fact is fortified by the act of the learned Family Court as and when unilaterally the case was reopened to exercise the powers vested in it under Section 9 of the Family Courts Act, 1984. The order sheet reflects that at the initial stage, the unilateral consent of husband was recorded. 10. In the matter of Smt. Sureshta Devi vs. Om Prakash, (1991) 2 SCC 25 , the Supreme Court deliberated on the issue as to whether once the consent granted in proceeding under Section 13 (B) of the Hindu Marriage Act, 1955 will continue to operate and will be binding on the parties whether they were allowed to withdraw or not. The Supreme Court laid down that consent should continue from the date of petition till the date of decree is passed and the parties would be at liberty to consider the decision to affirm or to withdraw the consent of divorce by mutual consent at subsequent date. The said judgment of Sureshta Devi (supra) was further reiterated by the Supreme Court in the matter of Smruti Pahariya vs. Sanjay Pahariya, (2009) 13 SCC 338 , wherein it has been held that there should be mutual consent of the parties at the time when the Court is called upon to make an enquiry and thereafter may pass final decree if consent/petition is not withdrawn. Therefore, it is a settled proposition that the mutual consent should subsist till the enquiry goes on and final order is passed. The Supreme Court in para 42 of this judgment held as under:- “42. We are of the view that it is only on the continued mutual consent of the parties that decree for divorce under Section 13B of the said Act can be passed by the Court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the Court grants the decree, the Court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the Court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its facts situation, discussed above.” 11. Applying the aforesaid principles laid down by the Supreme Court in the instant case as well, it is clear from the order sheets of the court below that the Family Court again opened the enquiry on 06.01.2020 to explore as to whether mutual consent subsists or not and unilateral consent of husband was recorded, whereas consent of both husband and wife was already recorded on previous date of hearing i.e. on 03.01.2020. The order sheets would further show that after passing the judgment at about 1 pm, the wife appeared in person, but by the time, the judgment of decree was already passed as per the order sheet of the Court. Therefore, admittedly on 06.01.2020, when the Family Court called upon the enquiry at the first instance, the wife was not present before the Family Court and whether she would have been agreed or not for consent or consent to be continued or not, it is not clear. Thus, taking into totality of the fact and applying the principles as laid down above, we hold that the Court having re-opened the case for hearing, though it was fixed for judgment, the bar of no date of hearing would not be applicable. Further since hearing was reopened and consent of husband alone was recorded, it cannot be allowed to sustain in view of principle laid down by the Supreme Court in Smruti Pahariya (supra). Further since hearing was reopened and consent of husband alone was recorded, it cannot be allowed to sustain in view of principle laid down by the Supreme Court in Smruti Pahariya (supra). Therefore, we allow the appeal on the ground that when the consent decree was passed, earlier to that, the enquiry was reopened, as such the Family Court failed to take into account the continuance of the consent of the wife. 12. In the result, the appeal is allowed. The judgment and decree of the Family Court is set aside. The case is remanded back to the Family Court to reconsider the issue. The parties are directed to appear before the Family Court, Raipur on 25.07.2022.