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2022 DIGILAW 808 (ALL)

Deepa Bajpai v. Ashish Mishra

2022-05-20

ATTAU RAHMAN MASOODI, NARENDRA KUMAR JOHARI

body2022
JUDGMENT : NARENDRA KUMAR JOHARI, J. 1. First Appeal No. 104 of 2017 (Deepa Bajpai Vs. Dr. Ashish Mishra) under Section 19 (1) of the Family Courts Act, 1984 has been filed against judgment and decree dated 15.05.2017, passed by Principal Judge, Family Court, Lucknow in Regular Suit No.2799 of 2016 (Dr. Ashish Mishra Vs. Deepa Bajpai). First Appeal No. 108 of 2017 (Deepa Bajpai Vs. Dr. Ashish Mishra) has been filed against the order dated 10.07.2017, passed by Principal Judge, Family Court, Lucknow in Misc. Case No.Nil/2017, by which the application filed by the appellant for recall of the judgment/decree dated 15.05.2017 was rejected. 2. Since the facts and issue in both the appeals are similar, parties are same, therefore, both the appeals are being decided by the common judgment. 3. The brief facts of the case as argued before us are that the appellant Deepa Bajpai got married with respondent Dr. Ashish Mishra on 29.01.2015 at Lucknow observing Hindu rites and rituals. In the marriage, sufficient dowry including motor car and jewelry were given by the parents of the appellant but respondent and his family members were not satisfied by the dowry given and were continuously rebuking and demanding additional dowry. The mother of appellant was suffering from cancer and her father was working on the post of Assistant Accounts Officer in Defence Accounts department who performed her marriage by taking loan, that is why the parents of the appellant were not in a position to fulfill the demand of additional dowry, consequently, the in-laws of the appellant started torturing her. 4. The appellant was performing her duties as wife of respondent and never left his company. On 11.02.2016, appellant gave birth to a female child but the in-laws were not happy, as the appellant gave birth to a girl. The daughter of the appellant was not a normal child, as she was having only one Kidney in her body and her treatment was continuing from the hospital SGPGIMS, Lucknow. Since the demand of additional dowry could not be fulfilled, hence the in-laws of appellant were continuously torturing and behaving badly with her. They were intending to remarry the respondent in greed of money and were forcing the appellant to take divorce but the appellant was not ready. Without the consent of appellant, the respondent prepared the papers for divorce on the basis of mutual consent. They were intending to remarry the respondent in greed of money and were forcing the appellant to take divorce but the appellant was not ready. Without the consent of appellant, the respondent prepared the papers for divorce on the basis of mutual consent. On 20.10.2016, the sister-in-law of appellant snatched her daughter from the lap of appellant and by giving threat of her life they forced the appellant to sign the papers of divorce petition in Court. Appellant appeared before the Court but due to threat to the life of her minor daughter, she could not speak a single word before the Court concerned. She had never signed any affidavit before oath commissioner. The divorce petition was instituted on 20.10.2016 and the next date, after six months, was fixed as 13.05.2017. On 13.05.2017, the next date given by the Court was 15.05.2017. On 15.05.2017 appellant along with respondent appeared before the Family Court and she was again forced to sign on some papers already prepared. 5. The appellant was living in her matrimonial home from 30.1.2015 till 10.06.2017. On 10.06.2017, the family members of the in-laws expelled and turned her out from her matrimonial home on the pretext that the decree for her divorce had been passed. Infact her in-laws had threatened appellant for the life of her minor daughter and she was compelled to sign the pleading and affidavit with false contention. The in-laws of the appellant have also committed offence by rebuking and torturing her in connection with demand of additional dowry. The divorce petition under Section 13-B of the Hindu Marriage Act,1955 has been filed in the Court with false contentions. It has wrongly been mentioned in the divorce petition that the parties have been living separately since 10.09.2015. Hence, a fraud has been committed with the appellant as well as with the court concerned. Accordingly, the consent which was given by the appellant before the Principal Judge, Family Court, was not free and had been obtained by force, fraud and undue influence. 6. Learned counsel for the appellant has further submitted that even the in-laws of the appellant expelled her from her matrimonial home. Immediately she approached to the court concerned to obtain the certified copy of the judgment and decree but her application was rejected on the ground of summer vacation. 6. Learned counsel for the appellant has further submitted that even the in-laws of the appellant expelled her from her matrimonial home. Immediately she approached to the court concerned to obtain the certified copy of the judgment and decree but her application was rejected on the ground of summer vacation. Immediately after summer vacation, appellant moved an application under Section 151 and under Order 47 Rule 1 of Code of Civil Procedure for recall and cancellation of the aforesaid judgment and decree but the application was rejected by the Principal Judge, Family Court on 10.07.2017. Thereafter, the instant appeal has been filed with the prayer to set aside the judgment and decree dated 15.05.2017. The minor daughter of the appellant is a medically challenged girl, who requires the custody and care of appellant urgently, hence the impugned judgment and decree be set-aside and appeal deserves to be allowed. 7. Learned counsel for the respondent vehemently opposed the arguments and replied that the instant appeal, which has been filed with false contention, according to law, is not maintainable. The application under Section 151 Code of Civil Procedure for cancellation/review of the judgment dated 15.05.2017 has already been rejected by the trial court vide order dated 10.07.2017. The instant appeal is not permissible, according to the provisions of Section 19 (2) of the Family Court Act. Learned counsel for respondent by referring the decision of this Court in the case of Nathu Lal vs. Raghuvir Singh and other; AIR 1926 Alld. 50 further submitted that for the relief as prayed by appellant a suit for declaration is maintainable. 8. We have heard the rival contentions of the parties and perused the record. 9. Taking into consideration the arguments of rival parties, the following points of determination are being framed : (i) Whether the impugned judgment and decree dated 15.05.2017, is liable to be set-aside as the appellant was under coercion and a fraud has been played with appellant as well as with Court? (ii) Whether the order dated 10.07.2017, passed by Principal Judge, Family Court, Lucknow was bad in law and is liable to be set aside, as prayed in Appeal No.108 of 2017? (iii) Whether the impugned judgment and decree which is based upon mutual consent under Section 13B of Hindu Marriage Act, 1955 can be challenged by way of appeal/suit? (ii) Whether the order dated 10.07.2017, passed by Principal Judge, Family Court, Lucknow was bad in law and is liable to be set aside, as prayed in Appeal No.108 of 2017? (iii) Whether the impugned judgment and decree which is based upon mutual consent under Section 13B of Hindu Marriage Act, 1955 can be challenged by way of appeal/suit? (iv) Whether for the reasons to grant custody of minor daughter, the appeal deserves to be allowed? 10. So far as point (i & ii)) -Whether the impugned judgment and decree is liable to be set-aside as the appellant was under coercion and a fraud has been played with appellant as well as with Court and Whether the order dated 10.07.2017, passed by Principal Judge, Family Court, Lucknow was bad in law and is liable to be set aside, as prayed in Appeal No.108 of 2017, are concerned, the provisions of Section 13B of Hindu Marriage Act, 1955, is reproduced as under :- "13B. 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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 not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen 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." 11. According to the above definition, following ingredients are essential for granting decree of divorce : - (i) parties have been living separately for a period of one year, (ii) they have not been able to live together. According to the above definition, following ingredients are essential for granting decree of divorce : - (i) parties have been living separately for a period of one year, (ii) they have not been able to live together. (iii) they have mutually agreed that the marriage should be dissolved. 12. The legislature in its wisdom has consciously provided the waiting period during which a decree for divorce by mutual consent can be passed. The object behind providing this period appears to allow time to the spouses to reconsider their decision and finally make up their mind in the above period. It also appears that in the interregnum period between minimum and maximum, the spouse can take legal recourse, if any force or fraud has been played while instituting the suit/proceedings under Section 13B of Hindu Marriage Act, 1955. The enactment also enables the court to satisfy itself that the consent of spouse is free from any extraneous influence or collusion. The legislation has also cast a duty on court under Section 23 of Hindu Marriage Act, 1955. Section 23 of Hindu Marriage Act, 1955, reads as under :- "23. Decree in proceedings.-(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that (a) x x x x (b) x x x x (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and (c) x x x x (d) x x x x (e) x x x x" 13. It is depicted by the record of the trial court that the application under Section 13B of Hindu Marriage Act, 1955 was signed by the appellant who was identified by her counsel Mr. Nischal Pal Advocate. The application contains the photograph of appellant with signature over there also. The petition has been signed by the appellant along with respondent on 20.10.2016. Apart from that, on 15.05.2017, appellant had signed the affidavit which has been filed in the court in support of the application under Section 13B of the Hindu Marriage Act, 1955. Record also indicates that a memo of appellant's address was also filed on 20.10.2016 before the Court while institution of petition. Apart from that, on 15.05.2017, appellant had signed the affidavit which has been filed in the court in support of the application under Section 13B of the Hindu Marriage Act, 1955. Record also indicates that a memo of appellant's address was also filed on 20.10.2016 before the Court while institution of petition. Learned counsel for the appellant has submitted that both the papers, i.e. divorce petition as well as affidavits in evidence has been signed by the appellant due to the reason that a threat was given to her for the life of her minor daughter. 14. Appellant is properly educated and is a post graduate lady, as it has been mentioned in paragraph 1 of the rejoinder affidavit dated 30.05.2018. The petition as well as the affidavit was drafted in Hindi. Certainly the appellant would have gone through the petition as well as the affidavit before signing the aforesaid papers but she did not raise any objection or complaint to Presiding Officer of the Court while the court was examining the parties in accordance with Section 13B (2) of the Hindu Marriage Act, 1955. Contrary to the same no argument has been put before us. Even no affidavit of her counsel has been submitted by appellant. 15. It has also been argued that petition for divorce was filed by the respondent with false facts. It has wrongly been mentioned in divorce petition that parties are living separately from 10.09.2015. The appellant, as wife was residing with respondent in her matrimonial home till 10.06.2017, the date on which the appellant was expelled from her matrimonial house. Appellant gave birth to a female child on 10.02.2016. 16. On the above point, appellant has not filed any documentary evidence in support of her argument regarding her dwelling in her matrimonial home till 20.10.2016. Even, she failed to file any paper of hospital where she gave birth of her daughter, to show the address of patient. The appellant has submitted her memo of address before the proceeding of trial court, showing a different address. She has not explained the same in memo of appeal. In paragraph 9 of Judgment Smt. Sureshta Devi vs. Om Prakash (1991) 2 SCC 25 , the Hon'ble Apex Court has held that, "9. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. She has not explained the same in memo of appeal. In paragraph 9 of Judgment Smt. Sureshta Devi vs. Om Prakash (1991) 2 SCC 25 , the Hon'ble Apex Court has held that, "9. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved." 17. Nothing has been placed on record to show that after 10th September, 2015, any conjugal relation was subsisting between appellant and respondent. For the argued fact that the in-laws of appellant illegally forced her and under coercion the appellant had signed the petition as well as the affidavit in court campus and to compel her, her medically challenged daughter had been snatched from her lap, the appellant even after 10.06.2017, has not lodged any F.I.R./complaint before any authorities/court. For the argued fact that the in-laws of appellant illegally forced her and under coercion the appellant had signed the petition as well as the affidavit in court campus and to compel her, her medically challenged daughter had been snatched from her lap, the appellant even after 10.06.2017, has not lodged any F.I.R./complaint before any authorities/court. Paragraph 2 of the impugned judgment is reproduced as under : ^^i{kdkjksa dks lquus rFkk muds 'kiFk&i= ds voyksdu ls ;g ik;k tkrk gS fd muds e/; fookg lEiUu gqvk Fkk vkSj ;kfpdk esa dgs x;s rF; lR; izrhr gksrs gSA i{kdkjksa ds e/; vkil esa dksbZ nqjfHk&laf/k izrhr ugha gksrh gSA i{kdkj yxHkx ,d lky ls vf/kd le; ls vyx&vyx jg jgs gSaA vr,oa mHk; i{kksa dh ikjLifjd lgefr ds vk/kkj ij muds e/; lEiUUk gq, fookg ds lEcU/k esa fookg foPNsn dh fMdzh ikfjr fd;k tkuk mfpr gksxkA^^ Hence, it is apparent that while passing the impugned judgment, the court had inquired with the parties to ascertain their free consent/collusion and at that time also appellant failed to narrate any fact of force or coercion before the presiding officer or her counsel. Even during the pendency of appeal appellant could have not submitted any cogent evidence which may establish that she was subjected to any undue influence or coercion during the proceedings of trial court, although she had filed the affidavits of Yagya Prasad Bajpai (father of appellant), Ankit Bajpai (brother of appellant) and Lalit Mohan Pandey (brother-in-law of Deepa's father) under Order 41 Rule 27 of Code of Civil Procedure but the deponent of the affidavits are none other than the family members and close relatives of the appellant. According to Section 1 of Evidence Act affidavits are not recognized as evidence. 18. On the basis of above facts and circumstances, it can be said that appellant has failed to prove that the impugned judgment and decree was obtained by playing any fraud or coercion with appellant as well as with the trial court. No evidence has been produced by the appellant before the Family Court in the proceedings under Section 151 and Order 47 Rule 1 Code of Civil Procedure. Accordingly, the first and second points of determination are decided in negative. 19. No evidence has been produced by the appellant before the Family Court in the proceedings under Section 151 and Order 47 Rule 1 Code of Civil Procedure. Accordingly, the first and second points of determination are decided in negative. 19. Point of determination No. (iii) -Whether the impugned judgment and decree, which is based upon mutual consent under Section 13(B) of Hindu Marriage Act, can be challenged by way of appeal/suit: The impugned judgment and decree has been challenged by the appellant in present appeal, filed u/s 19(1) of Family Courts Act, whereas, Section 19 (2) of the Act prohibits the maintainability of such appeal. The provision of Section 19 (2) reads as under :- "19. Appeal.- (1) x x x x x (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991. (3) x x x (4) x x x (5) x x x (6) x x x 20. Learned counsel for the appellant has argued that according to the provisions of Order 43 Rule 1A of the Code of Civil Procedure, the impugned decree can be challenged. The provisions of order 43 Rule 1A of the Code of Civil Procedure, is reproduced as under :- "1A. Right to challenge non-appealable orders in appeal against decrees.- (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded." So far as the appeal from original decree is concerned, Section 96 (3) C.P.C. bars appeal against consent decree. Section 96 (3) C.P.C. reads as under :- "96.Appeal from original decree.- (1) x x x x x (2) x x x x (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) x x x x " However, appellant cannot get any relief by way of filing appeal under Order XLI Rule 1A of the Code of Civil Procedure, as the Family Court Act is a special Act and according to Section 20 of the Family Court Act, the provisions of the Act have overriding effect. Section 20 of the Family Courts Act, reads as under : - "20. Act to have overriding effect.-The provisions of this 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." Hence in accordance with law cited above the appeal against judgment and decree u/s 13(B) is not maintainable. 21. Appellant cannot challenge the above judgment and decree by way of suit also. The barring provision is inacted under Order 23 Rule 3A of the Code of Civil Procedure, which reads as under :- "3A.Bar to suit.-No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." 22. In the case of K.Rajam Raju and others Vs. Smt. P.Rangamma and others, 2006 (4) ALD 61 , it has been held by Andhra Pradesh High Court that on the grounds of any fraud, misrepresentation or coercion an application to set aside the consented decree is maintainable before the same court which passed such order or decree. No separate suit is maintainable. 23. The Himachal Pradesh High Court in the case of Jamna Devi and others Vs. Sarswati Devi and others : MANU/HP/1692/2018, referring the law laid down in the case of Pushpa Devi Bhagat (D) through L.R. Smt. Sadhna Rai Vs. Rajinder Singh and others, MANU/ SC/3016/2006, has held in paragraph 13 as under :- "13. No separate suit is maintainable. 23. The Himachal Pradesh High Court in the case of Jamna Devi and others Vs. Sarswati Devi and others : MANU/HP/1692/2018, referring the law laid down in the case of Pushpa Devi Bhagat (D) through L.R. Smt. Sadhna Rai Vs. Rajinder Singh and others, MANU/ SC/3016/2006, has held in paragraph 13 as under :- "13. Bearing in mind the aforesaid exposition of law, more particularly, the observations made in para -10 of the aforesaid judgment, it is evidently clear that all questions with regard to lawfulness validity of the agreement or compromise as being void or voidable or where the compromise, in question, having been obtained by a fraud, duress, coercion etc., the same has to be raised before that Court which passed the decree on the basis of any such agreement or compromise. The Court cannot direct the parties to file a separate suit on the subject or no such suit will lie in view of the provisions of Order 23 Rule 3-A CPC" 24. Learned counsel for the appellant has argued that after getting the knowledge of divorce decree, appellant approached the trial court under the provisions of Order 47 Rule 1 and Section 151 of C.P.C. for recall of judgment and decree dated 15.05.2017 but the application of the appellant was rejected by the Principal Judge, Family Court vide order dated 10.07.2017. The rejection order for the reasons recorded by the Family Court, and in absence of any ground made out within the scope of Order 47 Rule 1 read with Section 151 of C.P.C. was rightly rejected. Therefore, in the light of the above discussion, the above third point of determination is decided in negative. The appellant cannot challenge the impugned judgment and decree by way of present appeal/civil suit. 25. Point of determination No. (iv) - Whether for the reasons to grant custody of her minor daughter, the appeal deserves to be allowed. 26. Learned counsel for the appellant has submitted that the judgment and decree for divorce has been obtained by the respondent by use of force and by committing fraud and under coercion to sign the petition for divorce as well as affidavit in trial court. The daughter of appellant is medically challenged. She has only one kidney in her body and requires special care and protection. The daughter of appellant is medically challenged. She has only one kidney in her body and requires special care and protection. On the other hand, respondent is a bank employee and is intending to remarry, therefore, considering the welfare of minor child, it is utmost needed that the daughter of appellant named, Gauri, be given under the custody of her mother and on the above ground the appeal deserves to be allowed. 27. In paragraph 11 of the petition under Section 13B of the Act, the appellant had given her consent to keep her daughter in the custody of respondent. So far as the custody of minor is concerned, undoubtedly, her welfare is supreme and the court has ample power to safeguard the interest of minor. In catena of judgments, it has been held by Hon'ble Supreme Court that in the matter of custody of minor, the paramount consideration for the court to view is as to what is conducive to the welfare of minor child. In the case of Rosy Jacob Vs. Jacob A. Chakramakkal MANU/SC/0260/1973, it has been held by Hon'ble Supreme Court in paragraph 20 that, "20.The appellant's argument based on estoppel and on the orders made by the court under the Indian Divorce Act with respect to the custody of the children did not appeal to us. All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees, cited at the bar. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation." In view of above, in changed scenario and for welfare of her minor daughter, the appellant always has a liberty to move application for the custody of her minor daughter before appropriate court. The third point of determination is decided accordingly. 28. The third point of determination is decided accordingly. 28. Under the facts and circumstances of the case, material available on record, we are of the considered view that the present appeal as well as the connected First Appeal No.108 of 2017 being bereft of merit are liable to be dismissed. 29. Accordingly, the first appeals are dismissed. 30. Cost is made easy. 31. Let a copy of the judgment/order be kept in the record of First Appeal No.108 of 2017.