Madhya Pradesh High Court
Smt. Himanshi Soni vs Raja Mahobiya on 2 April, 2025
Author: Anuradha Shukla
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:15994
1 FA-2173-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 2 nd OF APRIL, 2025
FIRST APPEAL No. 2173 of 2024
SMT. HIMANSHI SONI
Versus
RAJA MAHOBIYA
Appearance:
Shri Prakash Upadhyay - Senior Advocate with Shri Prashant Dubey - Advocate
for the appellant.
Shri Sanjayram Tamrakar - Senior Advocate with Shri Ankit Chopra - Advocate
for the respondent.
Reserved on : 23.01.2025
Pronounced on: 02.04.2024
JUDGMENT
Per: Justice Smt. Anuradha Shukla
This first appeal has been preferred by the appellant (hereinafter
referred to as "wife") against the judgment and decree passed on 8.11.2023
in RCSHM No.171/2023 by the Principal Judge, Family Court, Sagar,
whereby petition filed under Section 13 of the Hindu Marriage Act, 1955
was allowed and a decree of divorce between the parties was passed resulting
into dissolution of marriage with effect from the date of decree i.e.
8.11.2023.
2. Admittedly, the marriage was solemnized on 21.2.2022 and a divorce
petition was filed against the respondent (hereinafter referred to as
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2 FA-2173-2024
"husband") which was allowed under the impugned judgment.
3. The grounds raised in this first appeal are that the family court
committed an error in allowing the suit granting a decree in favour of
appellant/wife, whereas she never moved any divorce petition before the trial
court and respondent/ husband fraudulently got the divorce petition through
some another woman impersonating as real wife; the appellant/wife never
appeared before the trial court nor gave any statement and with the
conspiracy of court-staff and advocate, the respondent/husband secured an
illegal divorce decree which is null and void from its very inception and
deserves to be set aside; the irony is that the judgment and decree is actual
passed in favour of appellant/wife but it is ultimately giving advantage to
respondent/husband; the identity of lady pretending to be the real wife of
respondent was never enquired into; the aadhaar card of appellant/wife is
different from the aadhaar card of the person who was prosecuting the
divorce case as wife. It is, therefore, prayed that the appeal should be allowed
and the judgment as well as decree dated 8.11.2023 should be set aside. It is
also prayed that a criminal complaint be directed to be registered against the
respondent/husband, the impersonator, and the advocate who dishonestly
identified that lady as the wife of respondent. It is further prayed that
Superintendent of Police, Sagar, should be directed to investigate the matter
on the basis of complaint made by appellant/wife.
4. The respondent/husband has opposed this first appeal claiming that the
facts which are being alleged here regarding fraud and impersonation were
never pleaded before the trial court nor this court can make any enquiry into
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3 FA-2173-2024
this new set of facts. It is submitted that in the light of Indian Bank v.
Satyam Fibers (India) Pvt. Ltd.(1996) 5 SCC 550 the remedy available to
appellant/wife is to approach the family court requesting it to recall its
judgment.
5. Counsel for both the parties have been heard and the record has been
perused.
6. On perusal of decision of Hon'ble Apex Court given in the case of
Indian Bank (supra), it is settled legal position that every court of justice has
an inherent power to recall its judgment/order if it is obtained by playing
fraud on court and this power springs not from legislation but from the
nature and the constitution of the Court itself so as to enable it to maintain
dignity, secure obedience to its process and to punish unseemly behaviour. It
has also been laid down by Hon'ble Apex Court that "since fraud affects the
solemnity, regularity and orderliness of the proceedings of a court and
amounts to an abuse of process of court, the courts have, therefore, an
inherent power to set aside an order obtained by practising fraud upon that
court".
7. In terms of this settled legal proposition, we are convinced with the
objections raised by the learned counsel for respondent/husband that first of
all, this court is not competent to make any enquiry and secondly, there were
no pleadings of fraud before the trial court and an appeal being only a
continuation of suit, it cannot decide entirely new set of facts which were
never pleaded before the trial court. We, however, hasten to add that
appellant/wife is not remediless against the alleged fraud committed with her
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in a divorce case by impersonation and that remedy is legally recognized
even under the judgments of Hon'ble Apex Court.
8. We, therefore, do not find any reason to hear this appeal on facts which
were never pleaded before the trial court and accordingly direct the
appellant/wife to raise her grievance about the alleged fraud played in
obtaining the decree through impersonation. Consequently, the trial court is
also directed to make necessary enquiry into the averments, if any, the
appellant/wife makes in this regard and to examine through enquiry whether
the divorce decree passed by it in RCSHM No.171/2023 on 8.11.2023
deserves any reconsideration on the allegations of fraud.
9. Parties are, accordingly, directed to appear before the trial court on
15.5.2025 for making necessary averments and for participating in the
enquiry if any such enquiry follows.
10. This first appeal is accordingly disposed of.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
ps
