Tuesday, 31 January 2017

When appeal is maintainable against divorce decree by mutual consent?

 In Sureshta Devi v. Om Prakash [AIR 1992 SC 1904], the Honourable Supreme  
Court, analyzing the scope of Section 13-B of H.M.Act has held as under:
?13.From the analysis of the Section, it will be apparent that the filing of
the petitioner with mutual consent does not authorise the court to make a
decree for divorce.  There is a period of waiting from 6 to 18 months.  This
interregnum was obviously intended to give time and opportunity to the
parties to reflect on their move and seek advice from relations and friends.
In this transitional period one of the parties may have a second thought and
change the mind not to proceed with the petition.  The spouse may not be a
party to the joint motion under sub-section (2).  There is nothing in the
Section which prevents such course.  The Section does not provide that if
there is a change of mind it should not be by one party alone, but by both.
The High Courts of Bombay and Delhi have proceeded on the ground that the 
crucial time for giving mutual consent for divorce is the time of filing the
petition and not the time when they subsequently move for divorce decree.
This approach appears to be untenable.  At the time of the petition by mutual
consent, the parties are not unaware that their petition does not by itself
snap marital ties.  They know that they have to take a further step to snap
marital ties.  Sub-section 92) of Section 13-B is clear on this point.  It
provides that ?on the motion of both the parties.....if the petition is not
withdrawn in the meantime, the Court shall.......pass a decree of
divorce....? What is significant in this provision is that there should also
be mutual consent when they move the Court with a request to pass a decree of
divorce.  Secondly, the Court shall be satisfied about the bona fides and the
consent of the parties.  If there is no mutual consent at the time of the
enquiry, the Court gets no jurisdiction to make a decree for divorce.  If the
view is otherwise, the Court could make an enquiry and pass a divorce decree
even at the instance of one of the parties and against the consent of the
other.  Such a decree cannot be regarded as decree by mutual consent.
14.Sub-section (2) requires the Court to hear the parties, which means both
the parties.  If one of the parties at that stage says that X have withdrawn
my consent?, or ?I am not a willing party to the divorce?, the Court cannot
pass a decree of divorce by mutual consent.  If the Court is held to have the
power to make a decree solely based on the initial petition, it negates the
whole idea of mutuality and consent for divorce.  Mutual consent to the
divorce is a sine qua non for passing a decree for divorce under Section 13-
B.  Mutual consent should continue till the divorce decree is passed.  It is
a positive requirement for the Court to pass a decree of divorce.  ?The
consent must continue to decree nisi and must be valid subsisting consent
when the case is heard?. (See (i) Halsbury Laws of England, Fourth Edition
Vol.13 para 645; (ii) Rayden on Divorce, 12th Ed. Vol.1 p.291 and (iii)
Beales v. Beales, (1972) 2 All ER 667 at p.674 ; (1972) 2 WLR 972)?.

24. In Hina Singh v. Satya Kumar Singh [AIR 2007 Jharkhand 34], referring to
the requirements prescribed in Section 13-B of H.M.Act, to grant divorce by
mutual consent, the Court distinguished a consent decree passed in terms of
Order XXIII Rule 3 C.P.C., and a consent decree passed under Section 13-B of
H.M.Act and held that the provisions of Order XXIII Rule 3 C.P.C., is not
applicable to a decree passed under Section 13-B of H.M.Act.  On similar
facts, in Sushama Pramod Taksande v. Pramod Ramaji Taksande [AIR 2009 Bombay      
111], Satya Kumar Singh (supra) was followed.

25. In Roopa v. A.Shanmugam @ Suresh [2012-4-L.W.42], it was held by this  
Court that when divorce by mutual consent was passed in breach of the
requirements prescribed under Section 13-B of H.M.Act, an appeal can be
preferred to the Appellate Court.

26. Section 28 of H.M.Act, providing appeals from decrees and orders runs as
under:
28 Appeals from decrees and orders. - (1) All decrees made by the court in
any proceeding under this Act shall, subject to the provisions of sub-section
(3), be appealable as decrees of the court made in the exercise of its
original civil jurisdiction, and every such appeal shall lie to the court to
which appeals ordinarily lie from the decisions of the court given in
exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act under section
25 or section 26 shall, subject to the provisions of sub-section (3), be
appealable if they are not interim orders, and every such appeal shall lie to
the court to which appeals ordinarily lie from the decisions of the court
given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a [period of
ninety days] from the date of the decree or order.?     [emphasis supplied by 
the Court]

27. Thus, from the above, it is seen that a decree passed by the consent of
the spouses under Section 13-B of H.M.Act dissolving their marriage is to be
distinguished from decrees passed in other matters by a Civil Court as there
are several formalities and requirements, which are prescribed under Section
13-B of H.M.Act.  When there is violation of those requirements of law or
there is allegation of fraud, undue influence, coercion, deception, deceit in
passing a decree under Section 13-B of H.M.Act, an appeal can be made to the 
next Appellate Court.  Further, Section 28(1) of H.M.Act is very clear that
all decrees including a consent decree passed under Section 13-B of H.M.Act
is appealable.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 20.08.2015  

CORAM   
THE HONOURABLE MR.JUSTICE P.DEVADASS            

C.R.P.(PD) (MD) No.76 of 2014 
and 
M.P.(MD) No.1 of 2014 

S.Rajkannu  vs R.Shanmugapriya                            

Citation:2016(6) ALLMR(JOURNAL)96


This revision has been directed by the first petitioner in H.M.O.P.No.260 of
2012, on the file of learned Principal Sub Judge, Thanjavur, to scrap
C.M.A.No.21 of 2013, pending on the file of learned Principal District Judge,
Thanjavur.
2. On 01.09.2011, revision petitioner and respondent have joined in wedlock
at Punnainallur Mariamman Temple, according to Hindu Rites and Customs.  They  
have no issues, but have issues.  They jointly filed H.M.O.P.No.260 of 2012,
under Section 13-B of Hindu Marriage Act, 1955 (shortly, hereinafter
'H.M.Act') in the Court of Principal Subordinate Judge, Thanjavur, seeking
divorce on their own volition, since their marital bondage has been
irretrievably broken down.

3. Both were represented by very same Advocate.  On the date of presentation
of the said original petition, in order to elicit their willingness, the
learned Judge recorded their statement and they have affixed their signature.
The H.M.O.P. was adjourned.  As the revision petitioner / husband is very
much interested in getting divorce, he regularly, appeared before the Court.
But, the respondent / wife did not.  The H.M.O.P. came to be adjourned from
time to time.  Subsequently, notices were also issued to her for her
appearance, but they were in vain.

4. On 12.09.2013, revision petitioner alone was present.  She was not
present.  There was no representation on her behalf also.  In the
circumstances, the Trial Court concluded the proceedings and dissolved their
marriage under Section 13-B of H.M.Act.
5. In the circumstances, the respondent preferred C.M.A.No.21 of 2013, under
Section 28 of the Hindu Marriage Act, to the Court of Principal District
Judge, Thanjavur, challenging the said divorce decree granted by the learned
Principal Sub Judge, Kumbakonam, raising several grounds. 

6. At this juncture, the revision petitioner directed this revision alleging
that filing of the said appeal as against the divorce decree granted on their
mutual consent, is an abuse of process of the Court and thus the said
C.M.A.No.21 of 2013, pending on the file of the learned Principal District
Judge, Thanjavur, is to be struck off.

7. The learned counsel for the revision petitioner would submit that on the
date when the H.M.O.P. was presented before the Sub Judge, Kumbakonam, the    
statement of both the spouses were recorded by the learned Judge and it was
signed by both, it is enough to grant the decree of divorce.  In this
connection, the learned counsel for the revision petitioner cited Leela
Mahadeo Joshi v. Mahadeo Sitaram Joshi [AIR 1991 Bombay 105].   

8. The learned counsel for the revision petitioner would further submit that
the decree passed by the Trial Court is a consent decree.  As against a
consent decree, no appeal will lie.  In this connection, the learned counsel
for the revision petitioner would quote Section 96(3) C.P.C, and cite
K.C.Dora v. G.Annamanaidu [AIR 1974 SC 1069] and Pushpa Devi Bhagat v.    
Rajinder Singh [AIR 2006 SC 2628]. 

9. The learned counsel for the revision petitioner would further submit that
if the respondent is of the view that the consent decree was obtained
dishonestly or on coercion, the proper remedy is only to file a separate suit
to set it aside and not by way of an appeal.  In this connection, the learned
counsel for the revision petitioner would cite Kewal Krishnan v. Shiv Kumar
[AIR 1970 Punjab & haryana 176], and Bhagwati Prasad v. Delhi State Mineral
Development Corpn. [AIR 1990 SC 371].  

10. The learned counsel for the revision petitioner would also submit that
actually the respondent lured and trapped the petitioner.  Unknowingly, he
had fallen a prey.  She received all her Sreedhana articles and also Rs.2
Lakhs as lump sum amount assuring that she is willing to terminate their
marital bondage.  However, after the consent decree was passed, she
challenged the same by filing the appeal in C.M.A.No.21 of 2013.  It is
totally an abuse of process of the Court.

11. On the other hand, the learned counsel for the respondent would submit
that a decree dissolving the marriage by mutual consent, under Section 13-B
of H.M.Act, is a decree of a Civil Court.  As per Section 13-B(2) of H.M.Act,
the learned Trial Judge is expected to conduct a detailed enquiry.  But, in
this case, he did not do so.  Although a decree was passed by mutual consent
as against that a statutory appeal under Section 28(1) of H.M.Act would lie
to the Appellate Court.

12. In support of his said submissions, the learned counsel for the
respondent cited the following rulings:
i.      Sureshta Devi v. Om Prakash [AIR 1992 SC 1904],  
ii.     Hina Singh v. Satya Kumar Singh [AIR 2007 Jharkhand], 
iii.    Sushama Pramod Taksande v. pramod Ramaji Taksande, [AIR 2009 Bombay       
111], and
iv.     Roopa v. A.Shanmugam @ Suresh [2012-4-L.W.42].     

13. The learned counsel for the respondent, referring to Section 13-B(2) of
H.M.Act, would contend that the mutual consent must be continued till the
date of passing the decree.  However, in this case, it was not so.  The
respondent was not present when the decree was passed.  No enquiry as  
contemplated under Section 13-B of H.M.Act was conducted.  

14. I have anxiously considered the rival submissions, perused the materials
on record and decisions cited by both sides.

15. Originally, in 1955, when the personal law of Hindus were codified, the
concept of divorce by mutual consent was not accepted.  There is no provision
for divorce by mutual consent in the 1955 Act.  When the marriage become
useless, meaningless and remains only on paper, the Legislature thought it
fit to erase such kind of marriages and to enable the parties to go in their
own way, introduced the concept of divorce by mutual in 1976 in the Hindu
Marriage Act, 1955 by inserting Section 13-B in the parent Act.

16. Section 13-B of H.M.Act runs as under:
?13-B. 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, on the ground 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 sub-section (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.?

17. A reading of Section 13-B H.M.Act would show that the Act is also
concerned with preventing any hasty decisions of the spouses to go for
divorce.  That is how, a cooling off period has been prescribed in Section
13-B itself.  Parties were given time to think over their decision again and
again and were given chance to revise their view.  Divorce by mutual consent
cannot be forced, thrusted upon a spouse.  It must be out of willingness of
both.  It must exist till the final order was passed by the Court.

18. In the case before us, on the first hearing date before the Trial Court,
the H.M.O.P.No.260 of 2012 for divorce by mutual consent under Section 13-B
of H.M.Act was jointly presented by both the spouses.  Their statement
signifying their willingness for divorce was recorded and signed by both
before the Trial Court and thereafter it was adjourned from time to time and
thereafter the revision petitioner (husband) alone appeared and subsequently
in spite of notice, the respondent (wife) did not appear.  Under the
circumstances, on 12.09.2013, the impugned order of divorce by mutual consent
was passed by the Trial Court on the date when the revision petitioner alone
was present.

19. In Leela Mahadeo Joshi v. Mmahadeo Sitaram Joshi [AIR 1991 Bombay 105],   
in the joint petition for divorce by mutual consent filed under Section 13-B
of the Hindu Marriage Act, 1955, both the parties were enquired, their
evidence was recorded and all the necessary ingredients for divorce by mutual
consent under Section 13-B of H.M.Act was satisfied.  Yet, the Judge, Family
Court, dismissed the petition, since he did not believe that really they
wants divorce.  That order was set aside by a Division Bench of the Bombay
High Court as it is beyond the jurisdiction of the Family Court Judge under
Section 13-B of H.M.Act and granted them decree of divorce under Section  13-
B.  However, in the case before us, on 12.09.2013, no such enquiry was
conducted, evidence of both was not recorded and both the spouses were not
present.  Therefore, the said Bombay decision is not applicable to the
present case.

20. Passing of consent decree by the consent of both the parties to a suit /
appeal is recognized under the Code of Civil Procedure.  Order XXIII Rule 1
C.P.C., recognizes this concept.

21. As per Section 96(3) C.P.C., no appeal will lie against a consent decree
(See K.C.Dora v. G.Annamanaidu [AIR 1974 SC 1069] and Pushpa Devi Bhagat v.    
Rajinder Singh [AIR 2006 SC 2628].  However, on the ground of fraud,
coercion, undue influence, misrepresentation, a consent decree can be set
aside in a separate suit (See Kewal Krishnan v. Shiv Kumar [AIR 1970 Punjab &
Haryana 176]. 

22. However, a consent decree passed under Section 13-B of H.M.Act, granting 
divorce by mutual consent of the spouses is entirely different from a consent
decree passed by a Civil Court in non-matrimonial matters.

23. In Sureshta Devi v. Om Prakash [AIR 1992 SC 1904], the Honourable Supreme  
Court, analyzing the scope of Section 13-B of H.M.Act has held as under:
?13.From the analysis of the Section, it will be apparent that the filing of
the petitioner with mutual consent does not authorise the court to make a
decree for divorce.  There is a period of waiting from 6 to 18 months.  This
interregnum was obviously intended to give time and opportunity to the
parties to reflect on their move and seek advice from relations and friends.
In this transitional period one of the parties may have a second thought and
change the mind not to proceed with the petition.  The spouse may not be a
party to the joint motion under sub-section (2).  There is nothing in the
Section which prevents such course.  The Section does not provide that if
there is a change of mind it should not be by one party alone, but by both.
The High Courts of Bombay and Delhi have proceeded on the ground that the 
crucial time for giving mutual consent for divorce is the time of filing the
petition and not the time when they subsequently move for divorce decree.
This approach appears to be untenable.  At the time of the petition by mutual
consent, the parties are not unaware that their petition does not by itself
snap marital ties.  They know that they have to take a further step to snap
marital ties.  Sub-section 92) of Section 13-B is clear on this point.  It
provides that ?on the motion of both the parties.....if the petition is not
withdrawn in the meantime, the Court shall.......pass a decree of
divorce....? What is significant in this provision is that there should also
be mutual consent when they move the Court with a request to pass a decree of
divorce.  Secondly, the Court shall be satisfied about the bona fides and the
consent of the parties.  If there is no mutual consent at the time of the
enquiry, the Court gets no jurisdiction to make a decree for divorce.  If the
view is otherwise, the Court could make an enquiry and pass a divorce decree
even at the instance of one of the parties and against the consent of the
other.  Such a decree cannot be regarded as decree by mutual consent.
14.Sub-section (2) requires the Court to hear the parties, which means both
the parties.  If one of the parties at that stage says that X have withdrawn
my consent?, or ?I am not a willing party to the divorce?, the Court cannot
pass a decree of divorce by mutual consent.  If the Court is held to have the
power to make a decree solely based on the initial petition, it negates the
whole idea of mutuality and consent for divorce.  Mutual consent to the
divorce is a sine qua non for passing a decree for divorce under Section 13-
B.  Mutual consent should continue till the divorce decree is passed.  It is
a positive requirement for the Court to pass a decree of divorce.  ?The
consent must continue to decree nisi and must be valid subsisting consent
when the case is heard?. (See (i) Halsbury Laws of England, Fourth Edition
Vol.13 para 645; (ii) Rayden on Divorce, 12th Ed. Vol.1 p.291 and (iii)
Beales v. Beales, (1972) 2 All ER 667 at p.674 ; (1972) 2 WLR 972)?.

24. In Hina Singh v. Satya Kumar Singh [AIR 2007 Jharkhand 34], referring to
the requirements prescribed in Section 13-B of H.M.Act, to grant divorce by
mutual consent, the Court distinguished a consent decree passed in terms of
Order XXIII Rule 3 C.P.C., and a consent decree passed under Section 13-B of
H.M.Act and held that the provisions of Order XXIII Rule 3 C.P.C., is not
applicable to a decree passed under Section 13-B of H.M.Act.  On similar
facts, in Sushama Pramod Taksande v. Pramod Ramaji Taksande [AIR 2009 Bombay      
111], Satya Kumar Singh (supra) was followed.

25. In Roopa v. A.Shanmugam @ Suresh [2012-4-L.W.42], it was held by this  
Court that when divorce by mutual consent was passed in breach of the
requirements prescribed under Section 13-B of H.M.Act, an appeal can be
preferred to the Appellate Court.

26. Section 28 of H.M.Act, providing appeals from decrees and orders runs as
under:
?28 Appeals from decrees and orders. - (1) All decrees made by the court in
any proceeding under this Act shall, subject to the provisions of sub-section
(3), be appealable as decrees of the court made in the exercise of its
original civil jurisdiction, and every such appeal shall lie to the court to
which appeals ordinarily lie from the decisions of the court given in
exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act under section
25 or section 26 shall, subject to the provisions of sub-section (3), be
appealable if they are not interim orders, and every such appeal shall lie to
the court to which appeals ordinarily lie from the decisions of the court
given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a [period of
ninety days] from the date of the decree or order.?     [emphasis supplied by 
the Court]

27. Thus, from the above, it is seen that a decree passed by the consent of
the spouses under Section 13-B of H.M.Act dissolving their marriage is to be
distinguished from decrees passed in other matters by a Civil Court as there
are several formalities and requirements, which are prescribed under Section
13-B of H.M.Act.  When there is violation of those requirements of law or
there is allegation of fraud, undue influence, coercion, deception, deceit in
passing a decree under Section 13-B of H.M.Act, an appeal can be made to the 
next Appellate Court.  Further, Section 28(1) of H.M.Act is very clear that
all decrees including a consent decree passed under Section 13-B of H.M.Act
is appealable.

28. As already C.M.A.No.21 of 2013 preferred as against the decree passed
under Section 13-B of H.M.Act is pending before the First Appellate Court, I
wish not to enter into the merits of the matter as it would result in
prejudging the issue.

29. In winding up our discussion, we hold that C.M.A.No.21 of 2013 preferred
by the respondent as against the decree of divorce granted by the Trial Court
under Section 13-B of H.M.Act cannot be said to be an abuse of process of the
Court.

30. In the result, this civil revision petition fails and it is dismissed.
No costs.  Consequently, connected miscellaneous petition is closed.

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