Delhi High Court
Smt Supriya Gumber vs Sh Sumit Gumber on 23 May, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23.05.2025
+ MAT.APP.(F.C.) 111/2024 & CM APPL. 20467/2024
SMT SUPRIYA GUMBER .....Appellant
Through: Mr. Sudheer Pandey, Mr.
Rajender Singh, Mr. Rohit
Choudhary, Advs.
versus
SH SUMIT GUMBER .....Respondent
Through: Mr. L.K. Singh, Mr. Manoj
Chauhan and Mr. Raj Kumar,
Advocates.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
RENU BHATNAGAR, J. (ORAL)
1. The present appeal under Section 19 of the Family Courts Act,
1984 read with Section 28 of the Hindu Marriage Act, 1955
(hereinafter referred to as, "HMA"), has been filed by the appellant
challenging the Impugned Judgment and Decree dated 16.12.2021
passed by the learned Family Court, Shahdara, Delhi (hereinafter
„Family Court‟) in HMA No. 902/2021, titled Supriya Gumber v.
Sumit Gumber, whereby a decree of divorce by mutual consent under
Section 13B(2) of the HMA was granted.
2. Briefly stated, the facts giving rise to the present appeal are that
the marriage between the appellant and the respondent was
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solemnized on 17.06.2009 according to Hindu rites and customs in
Delhi. They lived together as husband and wife, and the marriage was
consummated. Two daughters, Ms. Gunika Gumber and Ms. Riya
Gumber, were born on 30.01.2012 and 19.11.2014, respectively.
3. It is contended in the appeal that after the marriage, the
respondent began harassing, torturing, and humiliating the appellant,
with the ulterior motive of forcing her into agreeing to a divorce. He
issued threats of grave harm to her life and property, including threats
to kill her and their daughters. The appellant endured this abuse in the
hope of preserving the marriage, despite being subjected to immense
physical and mental cruelty.
4. It is contended in the appeal that under threats and coercion,
including being held at knifepoint along with her daughters, the
appellant was compelled to sign a petition for divorce under Section
13-B(1) of the Hindu Marriage Act. She signed the first motion
petition on 08.09.2021 under extreme duress and without reading its
contents. It is alleged that the respondent never provided her with a
copy of the petition and falsely promised property and money for the
children‟s future after the divorce.
5. It is contended in the appeal, that the appellant continued to live
with her children on the second floor of the matrimonial home,
without any financial support from the respondent.
6. It is alleged that she was again coerced into signing the second
motion under Section 13-B(2), and the mutual consent divorce decree
was fraudulently obtained on 16.12.2021 in HMA No. 902/2021, by
exploitation, threats, coercion, and undue influence.
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7. The appellant also filed an application under Section 114 read
with Order XLVII of the Code of Civil Procedure, 1908 praying for
recall of the decree, which was dismissed by the Family Court on
27.02.2024. Since then, the appellant has borne all expenses for
herself and her daughters with no support from the respondent.
8. It is contended in the appeal that the respondent and his family
continued to threaten, abuse, and even assault the appellant and her
daughters, with incidents including public humiliation and physical
violence. Despite the fraudulent decree, the respondent cohabited with
the appellant and committed further acts of sexual and emotional
abuse.
9. The learned counsel for the appellant submits that the Impugned
Decree of Divorce was obtained by the respondent through fraudulent
means and under undue pressure. In support of this contention, it is
submitted that the appellant lodged the above-mentioned complaint
with the SHO, Police Station Jagatpuri, alleging harassment, torture,
humiliation, and threats to the life of the appellant and her minor
daughters by the respondent and his parents.
10. It is further submitted that the appellant filed multiple
complaints, including DD No. 71A dated 19.02.2022 and DD No. 97A
dated 22.02.2022, alleging that the respondent had forcibly established
physical relations with her and extended threats to kill her after
fraudulently obtaining the divorce decree. Based on these complaints,
FIR No. 179/2022 dated 26.02.2022 was registered at P.S. Janakpuri,
Delhi, under Sections 323, 376, 377, and 506 of the Indian Penal
Code.
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11. The learned counsel for the appellant further submitted that the
fraudulent nature of the divorce decree has severely affected the
welfare and education of the minor children, who were unable to
attend school due to non-payment of fees and lack of basic financial
support.
12. It is also contended that, contrary to the oral settlement and the
terms mentioned in the second motion decree, although custody of the
children was agreed to remain with the respondent, he willfully and
deliberately handed over the custody of the female children to the
appellant, with the sole intent of evading his legal and financial
responsibilities towards them. The respondent has since neither
retained custody nor contributed any financial support for the
children's education, nourishment, or general upkeep, thereby
breaching the agreed terms and conditions.
13. We have considered the submission made by the learned
counsel for the appellant, however, find no merit in the same.
14. Before proceeding further, it is necessary to consider the
maintainability of the present appeal. Section 19(2) of the Family
Courts Act, 1984 expressly bars any appeal from a decree or order
passed by the Family Court with the consent of the parties. Section 19
(2) of the Family Courts Act, 1984 reads as under: -
" 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
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Procedure, 1973 (2 of 1974):"
15. In Anshu Malhotra v. Mukesh Malhotra, 2020 SCC OnLine
Del 3255, a Division Bench of this Court had the occasion to consider
the maintainability of an appeal against a decree of divorce granted by
mutual consent under Section 13B(2) of the HMA. The Court held:
"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."
16. Similarly, the Supreme Court in Manisha Anand v. Nilesh
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Anand, SLP (C) No. 4530/2025, by its Order dated 24.02.2025,
reiterated that:
"2. The Family Court on 17.08.2023 has
passed a decree by consent for mutual divorce.
The petitioner-wife had preferred an appeal
before the High Court which was dismissed as
not maintainable.
3. The submission of learned senior counsel
for the petitioner is that the consent decree
was obtained by fraud and therefore, the same
is liable to be recalled.
4. If that be so, the proper remedy available to
the petitioner is to approach the Family Court
itself for recall of the consent decree rather
than filing an appeal."
17. In the present case, the appellant initially pursued the
appropriate remedy by filing an application under Order XLVII Rule 1
read with Section 114 of the Civil Procedure Code, 1908 (hereinafter
referred to as, „CPC‟), seeking a review of the consent decree dated
16.12.2021 before the learned Family Court. However, the said
application was dismissed on 27.02.2024 on the grounds that no error
was apparent on the face of the record and that no discovery of new
material was made out. Thereafter, the present appeal has been filed.
The relevant part of the Order dated 27.02.2024 passed by the learned
Family Court dismissing the review application is reproduced
hereinbelow:
"4. The first motion of divorce and second
motion divorce had taken place before the Ld.
Predecessor of this Court. Both the parties
were present alongwith counsel.
5. Order 47 CPC deals with the grounds on
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which application for review is maintainable.
It is mentioned therein that application for
review can be allowed:
(i) Firstly, on discovery of new and important
matter or evidence which was not within the
knowledge of parties or could not be produced
at the time decree was passed.
(ii) Secondly, on account of some mistake or
error apparent on the judgment and order.
(iii) For any other sufficient reason of like
feature.
6. However, the ground taken does not fit in
any of the above grounds provided for review
of the judgment. Needless to say, any other
sufficient reason has to be read in accordance
with the other two grounds as well.
There is no error apparent in the
judgment so passed nor is there discovery of
fresh fact or evidence which could not have
been produced in support of the mutual
consent application. The applicant may avail
appropriate remedies as per law. The present
review application is not maintainable and
same is hereby dismissed."
18. The appellant, having availed of and exhausted the remedy of
review, cannot now circumvent the statutory bar under Section 19(2)
of the Family Courts Act, 1984, by filing the present appeal. The
maintainability of such an appeal is squarely barred by law.
19. Even otherwise, we have perused the Impugned Judgment dated
16.12.2021 passed by the learned Family Court. It reflects that the
learned Court duly recorded the joint statement of both parties after
confirming their identity, verified their willingness to part ways, noted
the settlement of all claims including alimony and custody, and found
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that the statutory conditions under Section 13B(2) of the HMA were
satisfied.
20. The appellant was admittedly present in Court at both the
stages, that is, the first and second motion. Her joint statement
categorically records that the decision to seek divorce was voluntary
and not under any threat, coercion, or inducement. It is also recorded
that there were no pending disputes or unresolved issues. The relevant
portion of the statement of the parties recorded by the learned Family
Court on 16.12.2021, reads as under:
"We are residing separately since 10.08.2018
due to temperamental differences and have not
cohabited after the decision of the first motion.
I, Supriya, petitioner no.1 received have
settled all my claims towards maintenance,
alimony and Istridhan etc. pertaining to past,
present or future against my husband/
petitioner no. 2 according to the terms and
conditions of settlement, without any
consideration amount.
We further declare that the marriage between
us is irretrievably broken down and we have
decided not to live together anymore. Various
efforts were made by the relatives, friends and
even by court for patch up but of no use.
We further declare that there is no case
pending as on date between the parties."
21. Based on the above joint statement of the parties, the learned
Family Court passed the impugned judgment, which inter alia records
as under:
"3. The joint statement of the parties was
recorded who are identified by their respective
counsel and their identity is also ascertained
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from the photographs pasted on the petition.
There is no dispute of identity of the parties.
5. Both the parties have clearly stated that
they are not interested for any patch up and
there is no hope for the same. The marriage
between the parties is broken down
irretrievably and they cannot live together any
more.
6. Keeping in view the facts and circumstances
of the case, especially that due to
temperamental differences and attitudes,
parties are not living together for the last more
than 03 years and have already settled their
claims full and final. Since, there is no hope
for saving of the marriage in any situation so
the present petition u/s 13-B (2) of HMA is
allowed and the marriage between petitioners
Smt. Supriya Gumber and Sh. Sumit Gumber
taken place on 17.06.2009 is ordered to be
dissolved with effect from today through a
decree of divorce by mutual consent."
22. The appellant is stated to be a well-educated woman and a
mother of two children. It is difficult to accept that she would attend
court proceedings, sign pleadings, and make statements on oath, all
under duress and without any attempt to alert the Court.
23. The allegations of coercion, threats, and even criminal conduct
by the respondent, raised only after the decree was passed, appear to
be an afterthought. Similarly, change of the custody of the children
cannot be ground to recall the decree of divorce passed with the
mutual consent of the parties.
24. In light of the above discussion, we find that the present appeal
is not maintainable and even otherwise, there is no error or infirmity in
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the Impugned Judgment and Decree dated 16.12.2021 passed by the
learned Family Court.
25. Accordingly, the present appeal, along with all pending
applications, if any, is dismissed.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
MAY 23, 2025
Mayank/DG
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