Chattisgarh High Court
Smt. Vimla Kushwaha vs Ravindra Singh Suryawanshi on 7 December, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 34 of 2021
• Smt. Vimla Kushwaha D/o Ram Swaroop Prasad Kushwaha Aged About 30
Years Caste Kushwaha, R/o Village Sirsi, Police Station And Tahsil
Bhaiyathan District Surajpur Chhattisgarh
---- Appellant
Versus
• Ravindra Singh Suryawanshi S/o Shri Mugeshwar Prasad Suryawanshi
Aged About 37 Years Caste Kushwaha, R/o Village Champak Nagar, Police
Station And Tahsil And District Surajpur Chhattisgarh
---- Respondents
For Appellant : Shri V.K. Pandey, Advocate
For Respondent : Shri Gyan Prakash Shukla,
Advocate
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
Per Goutam Bhaduri, J.
07/12/20 21
Heard.
1. Learned counsel for the appellant would submit that judgment
passed in case of Amardeep Singh Vs. Harveen Kaur reported in (2017) 8
SCC 746 lays down certain conditions to be seen before the decree of
divorce is granted and the appellant may be given liberty to go before the
trial Court to file appropriate application.
2. Learned counsel for the respondent would submit that the
appeal would not lie, in view of the bar created under Section 19 (2) of
Family Courts Act, 1984 (for short 'Act of 1984') along with section 96 (3)
of Code of Civil Procedure, 1908 (for short 'Act of 1908').
3. Perused the judgment and decree and the records of the Court
below.
4. Perusal of records of the Court below would show that
application for mutual divorce was filed on 18.11.2020 and on 15.12.2020
an application for urgent hearing was filed to dilute the cooling-off period
which bears the signature of both the parties i.e. the appellant and the
respondent. Pursuant thereto on 15.12.2020, the learned Court below took
up the case and initially after some time fixed the case for hearing and
tried to advice for conciliation. After some time, when the parties appeared
and expressed inability to reconcile and as such on 15.12.2020 at 12.30
P.M. evidence of both the parties were recorded and case was fixed for
orders on the next date i.e. 16.12.2020. On 16.12.2020 the orders were
passed and the cooling-off period of 6 months was waived and the decree
of divorce was passed. Subsequently, this appeal has been filed.
5. Submission is made that various aspects which has been laid
down to dilute the cooling-off period as per the law laid down Amardeep
Singh (supra) has not been followed. For sake of brevity para 19 of the
judgment is quoted herein under:-
"19. Applying the above to the present situation, we are of
the view that where the Court dealing with a matter is
satisfied that a case is made out to waive the statutory
period under Section 13B(2), it can do so after
considering the following :
(i) the statutory period of six months specified in
Section 13B(2), in addition to the statutory period of
one year under Section 13B(1) of separation of
parties is already over before the first motion itself;
(ii) all efforts for mediation/conciliation including
efforts in terms of Order 32-A Rule 3 CPC/Section
23(2) of the Act/Section 9 of the Family Courts Act to
reunite the parties have failed and there is no
likelihood of success in that direction by any further
efforts;
(iii) the parties have genuinely settled their
differences including alimony, custody of child or
any other pending issues between the parties;
(iv) the waiting period will only prolong their agony. "
6. It has been submitted before this Court that in respect of the
alimony, maintenance and custody of the children or any other
pending issue between the parties have not been decided and had
there been waiting time the parties would have thought over time and
again to get divorce or not and would have settled the alimony,
custody of children. The said submission of the appellant about the
maintenance and other issues is a new fact which is brought before
this Court. During the course of evidence these issues were never
agitated and no whisper was made before the trial court of those
facts. Therefore, if the appellant wants to get over the order of
decree which is by consent, then in such case, she has to approach
the learned trial court again to canvas the new facts.
7. Section 19 (2) of Act of 1984 categorically mandate that no
appeal shall lie in decree or order passed by family Court with the
consent of the parties. Likewise similar provisions is contend in
section 96 (3) of CPC which postulates that no appeal shall lie
against the decree passed by the Court with the consent of the
parties. For the sake of brevity section 19 (2) of Act of 1984 is
reproduced hereinunder:-....
19. Appeal :-
(1) XXX
(2) No appeal shall lie from a decree or order passed by
the Family Court with the consent of the parties [or from an
order passed under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any
appeal pending before a High Court or any order passed
under Chapter IX of the Code of Criminal Procedure 1973 (2
of 1974) before the commencement of the Family Courts
(Amendment) Act, 1991].
8. Likewise Section 96 (3) of Act of 1908 is reproduced
hereinunder:-
96. Appeal from original decree:-
(1)XXX
(2)XXX
(3) No appeal shall lie from a decree passed by the Court with
the consent of parties.
9. In view of such statutory mandate, we are not inclined to go
into the merits of this appeal. The appeal is not maintainable as
such it is dismissed. The appellant if so aggrieved feels that certain
new facts are required to be considered may approach the learned
trial court again.
Sd/- Sd/-
(Goutam Bhaduri) (Rajani Dubey )
Judge Judge
Jyoti
