Beena Babu vs Andric Germic
2021 Latest Caselaw 4327 Ker

Mat.Appeal.No.1166/2018                   1




              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                      &

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

    FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                          Mat.Appeal.No.1166 OF 2018

  AGAINST THE ORDER/JUDGMENT IN OPDIV 1082/2018 DATED 04-10-
                 2018 OF FAMILY COURT, KOLLAM


APPELLANT/S:

                BEENA BABU,
                AGED 27 YEARS,
                D/O.BABU, VILAYIL PUTHENVEEDU, MATHILIL,
                PERINAD P.O., THRIKKADAVOOR VILLAGE, KOLLAM.

                BY ADV. SRI.AJAYA KUMAR. G

RESPONDENT/S:

                ANDRIC GERMIC,
                AGED 37 YEARS,
                S/O.GEORGE, KINARUVILA HOUSE, KUREEPUZHA,
                PERINAD P.O., THRIKKADAVOOR VILLAGE,
                KOLLAM TALUK.

                R1 BY ADV. SRI.JOHNSON GOMEZ

      THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
      05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
      FOLLOWING:
 Mat.Appeal.No.1166/2018          2




                          JUDGMENT

C.S.Dias, J.

The 2nd petitioner in O.P.(DA).No.1085 of 2018 of the

Family Court, Kollam is the appellant. The 1 st petitioner

in the said original petition is the respondent in the

appeal.

2. The brief facts giving rise to the appeal are as

follows:

The appellant and the respondent were husband and

wife. They jointly filed O.P.(DA).No.1085 of 2018, under

Section 10(A) of the Indian Divorce Act, 1869, seeking a

decree of divorce by mutual consent. The respondent is a

police officer. The respondent had misrepresented facts to

the appellant and made her sign the original petition and

affidavit under threat and coercion. Therefore, the

appellant is aggrieved by the impugned judgment and

decree. The marriage between the appellant and the

respondent was solemnized on 20.05.2010. The marital

relationship got strained after the birth of the 1 st child.

The respondent constantly harassed and threatened the

appellant and demanded her to transfer the property in

her name. Even after filing of the joint petition, the

couple was living together at the residence of the

respondent. On 18.11.2008, the respondent showed a

piece of paper to the appellant saying that it was the

divorce order obtained from the court, and he thereafter

deserted her. The respondent forcefully took away the

custody of the children. Appellant has not consented for

divorce by mutual consent. She has not given her free

will while signing the affidavit and joint petition. Hence,

the judgment and decree may be set aside.

3. Heard Sri.G.Ajayakumar, learned counsel for the

appellant and Sri.Johnson Gomez appearing for the

respondent.

4. The point that emanates for consideration in the

appeal is whether the impugned judgment and decree

passed by the Family Court is legally sustainable or not.

5. The appellant and the respondent got married

on 20.05.2010. They got separated on 29.09.2016. Both

parties appeared before the court and filed I.A.No.2605 of

2018 to waive the statutory waiting period of six months

to move the second motion. Thereafter, the appellant and

the respondent filed affidavits in lieu of the chief

examination and Exts.A1-(marriage certificate) and

Ext.A2 (agreement executed between the parties) were

marked. The Family Court after interacting with the

parties and on being convinced that there is no collision

between the parties; that their consent was not obtained

by fraud or undue influence and that all financial

transactions between the parties were settled, passed the

impugned decree.

6. The appellant is now before this Court, inter

alia, alleging that her consent for filing the joint petition

was obtained by fraud, undue influence and threat on the

part of the respondent.

7. We do not assume for a moment that the

findings of the Family Court in paragraph No.5 of the

impugned judgment, that the consent of both parties was

not vitiated by fraud or undue influence, is erroneous.

8. It is by now trite, as held by the Hon'ble

Supreme Court in Banwarilal v. Chando Devi &

Another [(1993) 1 SCC 581], that when a compromise

petition is lawfully signed by the parties and when it is

later on alleged that the compromise was entered into by

fraudulent ways, an appeal is not maintainable in view of

the bar under Section 93(3) of the Code of Civil

Procedure. The remedy of the aggrieved party is to

challenge the compromise before the same court which

passed the decree.

9. In addition to the above categoric declaration of

law, there is also a statutory bar under Section 19(2) of

the Family Courts Act, 1984 which prohibits an appeal

being filed from a compromise/consent decree. This

position is laid down in Velayudhan v. Deepa & Another

[2020 (1) KHC 373].

10. In light of our above findings and the

authoritative pronouncements in Banwarilal (sura) and

Velayudhan (supra), we are of the considered opinion

that this appeal challenging the impugned judgment is

not maintainable. It is up to the appellant, if she so

desirous, to move the Family Court as laid down in

Banwarilal (sura) for setting aside the decree on the

ground that her consent was obtained by fraud, undue

influence or other mitigating circumstances by the

respondent.

In the result, this appeal is dismissed, without

prejudice to the right of the appellant to seek appropriate

reliefs as enjoined in law.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

C.S.DIAS, JUDGE

DG