Delhi High Court
Delhi High Court
Litigation News

Appeal against a consent decree for dissolution of marriage not maintainable: Delhi High Court

The remedy before an aggrieved party in case of allegations of fraud and misrepresentation etc. is by applying to the same court, the High Court has said.

Aditi Singh

The Delhi High Court has held that an appeal against a consent decree of dissolution of marriage is not maintainable (Anshu Malhotra vs Mukesh Malhotra).

The remedy before an aggrieved party in case of allegations of fraud and misrepresentation etc. is by applying to the same court, the High Court has said.

The order was passed by a Division Bench of Justices Rajiv Sahai Endlaw and Asha Menon in appeal against an order for the dissolution of the marriage of the Appellant with the Respondent under Section 13B of the Hindu Marriage Act.

Justice Rajiv Sahai Endlaw, Justice Asha Menon
Justice Rajiv Sahai Endlaw, Justice Asha Menon

The Appellant had preferred an appeal under Section 28 of the Hindu Marriage Act (HMA), assailing the Family Court order on the ground that there was no consent of the Appellant or ‘mutual consent’ for dissolving her marriage with the Respondent.

Inter alia, it was contended that the order and decree was vitiated inasmuch as the consent of the Appellant to dissolve her marriage with the Respondent was obtained during the illness of the Appellant and was thus not of her own volition.

The Court, however, questioned the Appellant with respect to the maintainability of the appeal against a decree of dissolution of marriage by mutual consent in view of Section 96(3) of the Code of Civil Procedure, 1908 which barred appeals from a decree passed by the court with the consent of the parties.

The Court also referred to Section 19(2) of the Family Courts Act, which barred any appeal from a decree or order passed by the Family Court with the consent of the parties.

The Appellant, in response, relied on judgements passed by the Punjab & Haryana High Court wherein it was held that an appeal under Section 28 of the HMA was maintainable against a decree of dissolution of marriage by mutual consent.

The P&H High Court had stated that appeals under Section 96 of the CPC stood on a different footing from appeal against a decree of divorce by mutual consent.

This was so because a decree of divorce by mutual consent was not merely on mutuality of the consenting parties. Rather, the court's involvement in the decision making was inextricably a part of the decree. The possibility of an error, legal or factual, entering in the decision making could not be ruled out, it was explained.

The Delhi High Court, however, opined that the distinction as carved out by the P&H High Court qua a decree of dissolution of marriage by mutual consent vis-a-vis a suit before the civil court did not exist.

The Court also recorded that even the Gujarat High Court, Bombay High Court, Allahabad High Court, Kerala High Court and Madras High Court had taken the same view as that of P&H High Court.

The Court observed that the orders of the other High Courts aimed at providing a remedy to a spouse where the decree could not have been passed on the material available on record or had been passed in violation of the procedure prescribed by law or was obtained by misrepresentation or fraud.

“However, in none of the said judgments save the judgment of the Division Bench of the Gujarat High Court, we find any reference to the proviso to Rule 3 of Order 23 CPC and with respect whereto Supreme Court in Pushpa Devi Bhagat vs. Rajinder Singh (2006) 5 SCC 566.”, the Court added.

The Court recorded that in terms of the Supreme Court’s Judgement in Pushpa Devi Bhagat, a consent decree operated as an estoppel and was valid and binding unless it was 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.

The only remedy available to a party to a consent decree to avoid such consent decree, was to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise, the Supreme Court had held.

Stating that a decree for divorce by mutual consent did not stand on any different footing then a consent decree of a Civil Court under Order 23 Rule 3 of the CPC, the Court opined that it did not agree with the view taken by the other High Courts.

The Court thus held that appeal against a consent decree for dissolution of marriage was not maintainable and the remedy for an eventuality of fraud and misrepresentation was by applying to the same court.

Stating that an appellate court could not be converted into a fact finding court, the Court remarked,

"We do not find any reason why the said principle of law of general application should not follow qua decree of divorce by mutual consent when the grounds of appeal are on the basis of facts, which were not before the court which passed the consent decree. It is only the court which passed the consent decree which is capable of going into the said facts and if finds any prima facie merit therein, make inquiry by recording evidence with respect thereto and to thereafter take a final decision. Against such an order, an appeal may lie. We however do not deem it necessary to give a final opinion in this regard."
Delhi High Court

The appeal was accordingly dismissed for not being maintainable, with liberty to the Appellant to take steps in accordance with law.

The Appellant was represented by Advocate Amar Nath.

Read the Order:

Anshu Malhotra vs Mukesh Malhotra.pdf
Preview
Bar and Bench - Indian Legal news
www.barandbench.com