Gujarat High Court
Alpana W/O Rakesh Bherulal Chhajed And ... vs Rakesh Bherulal Chhajed on 8 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3592 of 2014
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2017
In R/FIRST APPEAL NO. 3592 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2014
In R/FIRST APPEAL NO. 3592 of 2014
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ALPANA W/O RAKESH BHERULAL CHHAJED AND D/O BANSILAL M
SHRIMAL
Versus
RAKESH BHERULAL CHHAJED
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Appearance:
MR HIMANSHU C DESAI(6832) for the Appellant(s) No. 1
MS. KIRAN PANDEY FOR MR. MR UT MISHRA(3605) for the Defendant(s)
No. 1
SURESHKUMAR L SHARMA(8471) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/01/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1 This appeal was listed for hearing on 06.01.2025. It
was taken up on two rounds, where none appeared on
behalf of the appellant. We, therefore, posted the appeal
for hearing today. Even today, the appellant has gone
unrepresented. We have, therefore, taken up the appeal
for hearing.
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2 The appellant-wife has challenged the judgement
and order dated 08.07.2014 passed by the Family Court,
Ahmedabad, in Family Suit No. 1009 of 2013. Both, the
appellant and the respondent, filed a joint petition for
divorce by mutual consent under Sec.13(B) of the Hindu
Marriage Act on 23.07.2013. It was their case that after
their marriage which was solemnized on 26.06.1999,
differences cropped up during their marriage life and
they had to reside separately from each other since last
sixteen months and they had no marital relations. It was
their case that they have two children out of the wedlock
and both are residing at a boarding school.
2.1 Perusal of the judgement under challenge would
indicate that during the course of the proceedings, at one
stage, the appellant-wife withdrew her consent by
application Exh.33.
2.2 On a reply being filed by the husband, ultimately the
dispute was settled and the appellant-wife withdrew the
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application withdrawing the consent. In other words, the
parties stood by their agreement to separate by mutual
consent.
3 Perusal of the judgement under challenge would
indicate that apart from statutory requirements that
Sec.13(B) of the Act contemplates, i.e. minimum cooling
period of six months, which was satisfied in the case, the
Trial Court carried out a mandatory conciliation which
has been recorded by the Conciliation Report dated
02.01.2014. In the case of Jyoti W/o. Darshan Nirmal
Jain and Daughter of Chandramohan Dayal vs.
Darshan Nirmal Jain., reported in 2012 (2) GLH 206,
the Division Bench of this Court in para 24 held as under:
"24. Whatever be the position, under the Code of
Civil Procedure, in our opinion, in view of the
language used in sub-section (2) of section 19, no
appeal would be maintainable against a decree
and/or order passed by the Family Court with the
consent of the parties. Even if the party to such
consent were to contend that such consent was
either obtained through force or fraud, collusion or
deceit, nonetheless, the appeal cannot be held to be
maintainable. The party may have other remedy
under the law with respect to which we are neither
called upon nor would like to draw any conclusion."
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4 Apparently, though the appeal memo sets out that it
is the case of the appellant that the decree was obtained
by fraud, we have also in a decision rendered in First
Appeal No. 4223 of 2024, by judgement dated
03.12.2024, held thus:
"37. Whether in fact, fraud was practiced is a
question of fact, which can only be gone into by the
original Court itself. As far as the decisions cited by
the learned advocate for the appellant, as indicated
earlier are concerned, they were decisions more or
less under Section 28 of the Hindu Marriage Act.
What is evident from another Allahabad High Court
Division Bench decision which our Court considered
was in the case of Ashutosh Kumar vs Anjali
Srivastava, reported in AIR 2009 ALD 100, wherein
the Could observed in para 5 thus:-
"5. Special law is a law which is enacted for
special cases, in special circumstances, in
contradiction to the general rules of law. For
that matter the Hindu Marriage Act, 1955 is
undoubtedly a special law as it has been
enacted to deal with the special cases in
relation to matrimonial/Family disputes
amongst the Hindus and with the procedure of
settlement of such disputes. It contains not only
the substantive law dealing with the grounds
for decree of divorce and other matters but also
with the procedure including appeals thereof."
38. What is, therefore, evident is that the Family
Court Act is a special law and therefore, the appeal
being governed by Section 19(2) of the Act would
make it difficult for us to accept the submission of
the appellant that an appeal shall lie against a
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decree or judgment obtained by fraud in a mutual
consent petition.
39. The Supreme Court in the case of Banwari Lal
Vs. Chando Devi, reported in AIR 1993 SC 1139, has
observed as under:-
"5. The learned Subordinate Judge, after
hearing both the parties and referring to
different facts and circumstances of the case
including that the compromise petition filed on
27.2.1991 had not been signed by both the
parties as required by Order 23, Rule 3 of the
Code, recalled the order disposing of the suit in
terms of the petition of compromise. He
directed restoration of the suit to its original
number. Against that order a revision
application was filed before the High Court on
behalf of the respondent. A learned Judge, as
already stated above, set aside the aforesaid
order passed by the learned Subordinate Judge
saying that the petition which was filed on
27.2.1991 as petition of compromise was really
an application filed on behalf of the appellant
for withdrawal of the suit under Order 23, Rule
1 of the Code and as the appellant had
voluntarily withdrawn the suit there was no
occasion to recall the order dated 27.2.1991
treating it to be an order under Order 23, Rule
3 of the Code."
40. We, as a first appellate Court, cannot go into the
question whether the decree was obtained/vitiated
by fraud, undue influence or misrepresentation.
41. We are therefore of the opinion that the appeal
would itself be not maintainable in light of the
provisions of section 19 (2) of the Family Courts Act.
42. It is also pointed out to us, showing the
agreement for divorce, that the same itself is an
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agreement, which can be said to be doubtful. We
may note after having perused the agreement so
entered into that it is witnessed not only by the
parties to the application by mutual consent but also
their relatives i.e., their parents on both sides. We
are refraining from saying anything on this, because
once having held the appeal as not being
maintainable, we would not like to go into the aspect
of the facts.
43. That brings us to the alternative submissions
made by the learned advocate for the appellant that
the basic ingredients and the mandatory provisions
of Section 13 -B of the Hindu Marriage Act, were not
complied with.
44. Then the second ground was that the Family
Court had ignored the requirements of Section 13-B
of the Act. Reading of the application would indicate
that the date from which they were staying
separately was shown as 15.01.2022. The same is
even reiterated in their affidavit, in the purshish, in
the conciliation report of the Family Court, and so
also in the application made for waiving off the
cooling period. That application for waiving off the
cooling period was filed under joint signatures and
their affidavits together. The parties were heard by
the learned Family judge, who recorded his
observation at Exh.11 ascertaining the willingness of
both the parties to separate.
45. Learned advocate for the appellant would like to
draw support from para 43 of the decision of division
bench of this Court in the case of Jyoti W/o Darshan
Nirmal Jain and Daughter of Chandramohan Dayal
(supra), to submit that even if the appeal is not held
to be maintainable, the facts before the division
bench finally weighed in favour of the wife in
entertaining the appeal.
46. We would not agree with the submission of
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learned advocate for the appellant, inasmuch as in
the case before the Division Bench apparently, the
cooling period was not even waived, whereas in the
facts of the present case, apparently with open eyes,
both the parties have filed an application for waiver
of the cooling period of six months and therefore, in
our opinion, the statutory condition of Section 13-B
in light of the decision in the case of Amardeep
Singh (supra), was complied with."
5 In light of the aforesaid, we find no merit in the
appeal. The appeal is dismissed, accordingly.
In light of dismissal of the main appeal, connected
civil applications will not survive and stands disposed of,
accordingly.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
BIMAL
