Anshu Malhotra v. Mukesh Malhotra). He submits, the view was, aggrieved party to a decree for d
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.78 of 2019 Saraswati Karan …. Appellant Mr. P. K. Satapathy, Advocate Siba Prasad Karan -versus- …. Respondent Mr. B. S. Tripathy, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 13.12.2023 Mr. Satapathy, learned advocate appears on behalf of Order No. 24. 1. appellant-wife. On last occasion (29th November, 2023) he had submitted, his client is aggrieved by judgment dated 28th February, 2019, when Mr. Tripathy learned advocate appearing on behalf of respondent-husband had pointed out, impugned judgment was made under section 13-B in Hindu Marriage Act, 1955. Mr. Tripathy submits, the appeal is not maintainable. Page 1 of 6 // 2 // 2. We reproduce below paragraph 2 from our order dated 29th November, 2023. “2. We have perused impugned judgment. We notice that the family Court said therein it tried for re-union between the parties but no fruitful result could be achieved. It also said both the parties were examined, who supported the averments made in the petition. It said still further, the Court is satisfied that the parties have filed the joint petition out of their free-will and without any compulsion in order to get their marriage dissolved. All this stares in the face of appellant in urging ground of appeal based on fraud. Furthermore, Mr. Tripathy submits, ground of appeal cannot be said to be pleading of fraud. Without prejudice, there is no such ground of appeal.” 3. Today, Mr. Satapathy relies on view taken by a Division Bench of Delhi High Court in Matrimonial Appeal-Family Court no.86 of 2020 by judgment dated 3rd June, 2020 (Anshu Malhotra v. Mukesh Malhotra). He submits, the view was, aggrieved party to a decree for divorce by mutual consent had to apply to the Court which passed the decree. We reproduce below paragraph 22 of the judgment (Supreme Today print). Page 2 of 6 // 3 // “22. As would immediately become obvious, the law with respect to consent decree is, that though appeal is not maintainable there against but the remedy for a eventuality of consent having been obtained forcefully or fraudulently or having been obtained by misrepresentation is, by applying to the same court. 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. However when the facts on which setting aside of a decree for divorce by mutual consent are pleaded in the appeal for the first time, it is not in the domain of the appellate court to enter into the inquiry into the said facts and if the same is done, would also deprive the parties of an important right of appeal, by converting the appellate court into a fact finding court.” (emphasis supplied) Page 3 of 6 // 4 // 4. The Delhi High Court though took the view but said it did not deem it necessary to give a final opinion in this regard. Be that as it may, in taking the view there was reliance on judgment of the Supreme Court in Pushpa Devi Bhagat v. Rajinder Singh, reported in (2006) 5 SCC 566, paragraph 17. The compromise decree under consideration by the Supreme Court was not on a matrimonial proceeding. The Supreme Court noticed that no independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in rule 3A under order XXIII, Code of Civil Procedure, 1908. The Supreme Court said, the decreeing Court is to be approached. 5. The appeal is a matrimonial appeal under section 19 of the Family Courts Act, 1984. Sub-section (1) in the section carries non obstante clause regarding application of the Code of Civil Procedure. We hasten to add that in other suits the bar under rule 3A of order XXIII would not prevent a party to the suit, in which the compromise decree was passed, to file separate suit alleging fraud in having obtained the compromise. Page 4 of 6 // 5 // 6. Section 7 in the Family Courts Act specifically provides for jurisdiction of the family Court. Furthermore there is specific bar under section 19(1). Appellant by relying on view taken by the Delhi High Court, cannot go back to the family Court with a suit or an application for setting aside a decree passed by the said Court under section 13-B in Hindu Marriage Act, 1955. 7. Confronted with this road block Mr. Satapathy submits, his client still has remedy available under section 25 in Hindu Marriage Act, 1955. His client is residing with her ex-husband’s mother and the child. These are events, which were not considered and can be considered as subsequent events, being change of circumstances, for his client to apply for maintenance, even by way of permanent alimony. 8. Perused impugned judgment. We put query to Mr. Tripathy regarding the judgment having been made by the Court without the compromise petition being made a part of the judgment. It referred to the petition filed for the judgment being made and nothing else. Mr. Tripathy submits, the compromise petition was not required to be made part of the judgment. Page 5 of 6 // 6 // 9. In view of last preceding paragraph, there is no impediment and none by reason of statements made in the compromise petition, for appellant-wife to apply for maintenance under section 25. In the circumstances, there is no necessity to interfere with impugned judgment in appeal. 10. With above observations the appeal is disposed of. ( Arindam Sinha ) Judge ( S. S. Mishra ) Judge Page 6 of 6 Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 13-Dec-2023 19:00:59