Delhi High Court holds that an appeal against the consent of the dissolution of marriage is not maintainable.
Facts of the Case
The Appellant has filed the appeal under Section 28 of the Hindu Marriage Act (HMA). It is against the order of the Family Court. Also, stating that there was no mutual consent to dissolve her marriage.
The Appellant argued that she was sick when she gave consent; thus, it was not her wish. The Court referred to Section 19(2) of the Family Courts Act. It stated that any appeal against an order passed by Family Court with the consent of the parties is barred.
The Court questioned the maintainability of the appeal given in Section 96(3) of the CPC, 1908. This section barred appeals from a decree passed by the Court with the consent of the parties. The Punjab and Haryana High Court highlighted Section 96 of the Civil Procedure, 1908. In addition to that, it pointed out that appeals under this section stood on a different footing. Therefore, that is from an appeal against a decree of divorce by mutual consent.
The Appellant contended that the order of the dissolution of her marriage was obtained during her illness. Thus, it is not of her own volition. And there was no consent for the dissolution of marriage with the respondent. Further, the contention raised was that the parties did not live for the mandatory period of one year. This happened before a petition under Section 13B (1) of the Hindu Marriage Act. In various cases, an appeal under Section 28 of the Hindu Marriage Act is maintainable. That is against a decree of dissolution of marriage by mutual consent.
The Delhi HC said that the distinction as put by the Punjab and Haryana HC does not exist. That is between a decree of dissolution of marriage by mutual consent and a suit before the Civil Court. The Gujarat, Bombay, Allahabad, Kerala, and Madras HC had taken the same view as that of Punjab and Haryana HC.
The Court thus held that appeal against a consent decree for dissolution of marriage was not maintainable. The remedy for fraud and misrepresentation was by applying to the same Court.
The Court’s Remarks
“We do not find any reason why the said principle of the law of general application should not follow qua decree of divorce by mutual consent. When the grounds of appeal are based on facts, which were not before the Court, which passed the consent decree, it is only the Court that passed the consent decree which is capable of going into the said facts. If any prima facie merit is revealed therein, inquire by recording evidence concerning that and to take the final decision after that. Against such an order, an appeal may lie. We, however, do not deem it necessary to give a final opinion in this regard.”
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