Different Theories Of Divorce

Mutual Divorce


An appeal against the decree of divorce by mutual consent

Recently, a division bench of Justice Rajiv Sahai Endlaw and Asha Menon of Delhi High Court in the case of Anshu Malhotra v. Mukesh Malhotra[1], held that an appeal against a consent decree of dissolution of marriage is not maintainable and the remedy before an aggrieved party in case of allegations of fraud and misrepresentation etc. is by applying to the same court which had granted the decree, the High Court has said.

In the said case:
  • An appeal under Section 28 of Hindu Marriage Act read with Section 19 of Family Courts Act file against an order and decree of the judge, of the family court, of dissolution of marriage of appellant-wife with respondent-husband under Section 13B of HMA.
  • The wife contended that the order and decree of family court does not hold good as her consent for the decree obtain during her illness and thus there was no consent from her side and hence, no consent for mutual divorce. Inter alia, it argue that the order and decree was vitiate inasmuch as the consent of the Appellant to dissolve her marriage with the Respondent obtain during the illness of the Appellant and thus not of her own volition.
  • She further contended that before filing the petition under Section 13B of the HMA, they were not living separately for a period of 1 year which is mandatory.

The counsel of the appellant refer to a number of cases, but the court held that in all the cases. Decree for divorce by mutual consent pass in violation of the procedure provide by law and the violation was evident on the face of it. However, in the present case no apparent error seen on the face of it and therefore it could not said that family court erred in passing a decree of mutual divorce. The Delhi High Court thus ruled that an appeal against a consent decree of dissolution of marriage is not maintainable.

Code of Civil Procedure

Court during the proceeding, 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 further 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 Court refer to the Supreme Court’s Judgement in Pushpa Devi Bhagat. In which it held that a consent decree operate. As an estoppel and valid and binding unless it is set aside by the court which pass 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 record the compromise and made a decree in terms of it. And establish that there‘s no compromise, the Supreme Court had held

The Court thus ruled that an appeal against a consent decree for dissolution of marriage is not maintainable. The remedy for an eventuality of fraud and misrepresentation was by applying to the same court. The court further said that an appellate court could not convert into a fact finding court.

The appeal was thus dismiss for not being maintainable. With liberty to the Appellant to take steps in accordance with law.

Reference


[1] MAT.APP. (F.C.) 86/2020

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