Chattisgarh High Court
Sneha Dahire vs Tarun Dahire on 22 June, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No.26 of 2022
• Sneha Dahire, W/o Tarun Dahire, D/o Bramhanand Markandey,
Aged About 31 Years, R/o Village Kokdi, PS. Balodabazar, Tahsil
and District Balodabazar (C.G.), Presently Residing at C/o P.K.
Kant, Ramkrishna Colony, Near AGFG Church, Mopka, District
Bilaspur (C.G.)
---- Appellant
Versus
• Tarun Dahire, S/o Ganesh Das Dahire, Aged About 36 Years, R/o
Dondekhurd Housing Board Colony, House No.S-236, Raipur,
Tahsil and District Raipur (C.G.), Presently Residing At Village
Baigakapa, P.S. Lalpur, Tahsil Lormi, District Mungeli (C.G.)
---- Respondent
For Appellant Mr. Dilman Rati Minj, Advocate
For Respondent Mr. Anchal Kumar Matre, Advocate
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Smt. Justice Rajani Dubey
Order On Board
Per Goutam Bhaduri, J.
22/06/2022
1. The present appeal is preferred by the appellant challenging the
judgment and decree dated 06.01.2020 passed by the learned
Principal Judge, Family Court, Raipur in Civil Suit No.664/2019 in
between Tarun Dahire vs Smt. Sneha Dahire, whereby the
application filed by the respondent husband under Section 13 (B) of
the Hindu Marriage Act, 1955 has been allowed.
2. The Office has raised objection that the present appeal is not
maintainable for the reason that it is barred under Section 19 (2) of
the Family Court Act, 1984, as no appeal would lie from a decree or
order passed by the Family Court with the consent of the parties.
3. The appearance of the respondent is already on record.
4. The facts of the case are that an application under Section 13 (B) of
the Hindu Marriage Act, 1955 was filed by the appellant wife and the
respondent husband before the Family Court, Raipur with averment
that they were married on 09.11.2011 and out of their wedlock, a
child was born on 26.08.2013. It was further pleaded that after
sometime of the marriage and birth of the child, both husband and
wife could not adjust with each other and fell into the differences of
compatibility and the opinion. Consequently, they started living
separately for last 6 years. Thereafter, an application was filed by
husband and wife claiming mutual divorce under Section 13 (B) of
the Hindu Marriage Act, 1955. It was further contended that it was
agreed that the child begotten to them would be in the custody of
the mother, whereas the paternity right would be protected. The wife
also denounced her right to claim maintenance. Under the aforesaid
grounds, the divorce was claimed. The learned Family Court on
06.01.2020 passed the judgment and decree of divorce in Civil Suit
No.564/2019, which is under challenge in this appeal.
5. Learned counsel for the appellant wife would submit that though the
application was filed for divorce by mutual consent, but the consent
of the appellant wife did not subsist on the date when the judgment
and decree was passed. He referred to Section 9 of the Family
Courts Act, 1984 and would submit that Section 9 casts duty upon
the Family Court to make all efforts for settlement between the
parties. In the instant case, initially though the consent of both the
husband and the wife was recorded on 03.01.2020 and the case
was fixed for 06.01.2020 for final order, but on 06.01.2020 again,
the case was reopened and only the consent of the husband was
recorded. Therefore, it would be against the spirit of Section 9 of the
Family Courts Act, 1984 and no decree can be passed
subsequently.
6. Per contra, learned counsel for the respondent husband would
submit that the consent of the parties was already recorded on
03.01.2020 and it was a mere formality on the subsequent date and
the Court was not bound to record statement or consent of the
parties once having recorded. Resultantly, based on the previous
consent of the parties, which was recorded on 03.01.2020 itself, the
decree of divorce was passed. Therefore, the instant appeal would
not be tenable as per Section 19 (2) of the Act, 1984, which bars an
appeal in the event that consent decree is passed.
7. We have heard learned counsel for the parties at length and
perused the records.
8. Perusal of the record would show that on 18.06.2019, a joint
application was moved by the appellant wife and the respondent
husband under Section 13 (B) of the Hindu Marriage Act, 1955 for
divorce by mutual consent. The learned Family Court proceeded for
settlement, however, it failed. The order sheet dated 03.01.2020
records the appearance of both husband and wife. The order sheet
purports that both husband and wife contended that they cannot live
together, thereafter their statement was recorded and the case was
fixed for judgment on 06.01.2020. The order sheet dated
06.01.2020 would show that the case was again reopened and the
consent of the husband was recorded, wherein he discloses that he
cannot stay with the appellant wife and the efforts of conciliation
failed. The order sheet would further show that when such consent
was recorded, the wife was not present before the Family Court.
9. Perusal of both the order sheets dated 03.01.2020 & 06.01.2020
would show that when initially on 03.01.2020, the consent of both
husband and wife was recorded and the case was fixed for
judgment on 06.01.2020, the same may not amount a date of
hearing as per the law laid down by the Hon'ble Supreme Court in
the matters of Arjun Singh vs Mohindra Kumar and others 1 and
Bhanu Kumar Jain vs Archana Kumar and another 2. However,
the proceedings of the court below would show that the Family
Court reopened the case again on 06.01.2020, thereby the case
came within the ambit of "hearing" again. This fact is fortified by the
act of the learned Family Court as and when unilaterally the case
was reopened to exercise the powers vested in it under Section 9 of
the Family Courts Act, 1984. The order sheet reflects that at the
initial stage, the unilateral consent of husband was recorded.
10. In the matter of Smt. Sureshta Devi vs Om Prakash 3, the Supreme
Court deliberated on the issue as to whether once the consent
granted in proceeding under Section 13 (B) of the Hindu Marriage
Act, 1955 will continue to operate and will be binding on the parties
whether they were allowed to withdraw or not. The Supreme Court
laid down that consent should continue from the date of petition till
the date of decree is passed and the parties would be at liberty to
consider the decision to affirm or to withdraw the consent of divorce
by mutual consent at subsequent date. The said judgment of
Sureshta Devi (supra) was further reiterated by the Supreme Court
in the matter of Smruti Pahariya vs Sanjay Pahariya4, wherein it
has been held that there should be mutual consent of the parties at
1 AIR 1964 SC 993
2 (2005) 1 SCC 787
3 (1991) 2 SCC 25
4 (2009) 13 SCC 338
the time when the Court is called upon to make an enquiry and
thereafter may pass final decree if consent/petition is not withdrawn.
Therefore, it is a settled proposition that the mutual consent should
subsist till the enquiry goes on and final order is passed. The
Supreme Court in para 42 of this judgment held as under:-
"42. We are of the view that it is only on the continued
mutual consent of the parties that decree for divorce
under Section 13B of the said Act can be passed by the
Court. If petition for divorce is not formally withdrawn
and is kept pending then on the date when the Court
grants the decree, the Court has a statutory obligation to
hear the parties to ascertain their consent. From the
absence of one of the parties for two to three days, the
Court cannot presume his/her consent as has been
done by the learned Family Court Judge in the instant
case and especially in its facts situation, discussed
above."
11. Applying the aforesaid principles laid down by the Supreme Court in
the instant case as well, it is clear from the order sheets of the court
below that the Family Court again opened the enquiry on
06.01.2020 to explore as to whether mutual consent subsists or not
and unilateral consent of husband was recorded, whereas consent
of both husband and wife was already recorded on previous date of
hearing i.e. on 03.01.2020. The order sheets would further show
that after passing the judgment at about 1 pm, the wife appeared in
person, but by the time, the judgment of decree was already passed
as per the order sheet of the Court. Therefore, admittedly on
06.01.2020, when the Family Court called upon the enquiry at the
first instance, the wife was not present before the Family Court and
whether she would have been agreed or not for consent or consent
to be continued or not, it is not clear. Thus, taking into totality of the
fact and applying the principles as laid down above, we hold that the
Court having re-opened the case for hearing, though it was fixed for
judgment, the bar of no date of hearing would not be applicable.
Further since hearing was reopened and consent of husband alone
was recorded, it cannot be allowed to sustain in view of principle
laid down by the Supreme Court in Smruti Pahariya (supra).
Therefore, we allow the appeal on the ground that when the consent
decree was passed, earlier to that, the enquiry was reopened, as
such the Family Court failed to take into account the continuance of
the consent of the wife.
12. In the result, the appeal is allowed. The judgment and decree of the
Family Court is set aside. The case is remanded back to the Family
Court to reconsider the issue. The parties are directed to appear
before the Family Court, Raipur on 25.07.2022.
Sd/- Sd/-
Goutam Bhaduri Rajani Dubey
Judge Judge
Nirala
