Family - Recall of Decree - Revision filed against an appellate decision upsetting an order of the Trial court recalling a decree passed by it under Section 13B of the Hindu Marriage Act dissolving the marriage between the Petitioner and the opposite party by a decree of divorce by mutual consent - Whether a consent decree obtained by exercise of fraud, undue influence or coercion is liable to be recalled or set aside by the court passing the decree in exercise of its inherent power - Held, Court has inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties. It was urged before us on behalf of the defendants-appellants that the only remedy is by suit and that once the decree has been signed there is no jurisdiction in the Court to set it aside on the ground of fraud - Section 13B(1) requires a petition jointly presented to the court by both the parties to the marriage - It must clearly and categorically indicate (a) that the parties have been living separately for a period of one year or more before the presentation of the petition (b) that they have not been able to live together and (c) that they have mutually agreed that the marriage should be dissolved - One of the essential pre-conditions, for maintaining an action under Section 13B was wanting in the petition as well as in the evidence, the decree for divorce disclosed an error apparent on the face of the record - As all the three elements of Section 13B(1) are cumulative, no decree under Section 13B can be supported by only two of them - Therefore, the case was a fit one for review under Order 47, Rule 1 of the Code - Petition allowed
AIR1987Ori1, 1986(2)OLR751
Court can recall its own judgment in case of fraud.-There are occasions where the parties do not approach the court with clean hands and obtain a decree of divorce by way of fraud or misrepresentation of the facts. Under such circumstances the court granting the decree of divorce has the power to recall its own judgment under its inherent power. In Pushplata Rout v. Damodar Rout, MANU/OR/0001/1987 : AIR 1987 Ori 1: (1987) 1 Hindu LR 213, the High Court of Orissa held that the court has to be satisfied apart from other provisions of Section 23 of the Act in particular and the provisions in Section 23(1), clause (bb) namely that the consent of any party has not been obtained by force or fraud.
IN THE HIGH COURT OF ORISSA
Civil Revn. No. 469 of 1984
Decided On: 15.05.1986
Appellants: Smt. Puspalata Rout
Vs.
Respondent: Damodar Rout1
Hon'ble Judges/Coram:
R.C. Patnaik, J.
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