Orissa High Court
Saraswati Karan vs Siba Prasad Karan on 13 December, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.78 of 2019
Saraswati Karan .... Appellant
Mr. P. K. Satapathy, Advocate
-versus-
Siba Prasad Karan .... Respondent
Mr. B. S. Tripathy, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
ORDER
13.12.2023
Order No.
24. 1. Mr. Satapathy, learned advocate appears on behalf of
appellant-wife. On last occasion (29th November, 2023) he had
submitted, his client is aggrieved by judgment dated 28th February,
2019, when Mr. Tripathy learned advocate appearing on behalf of
respondent-husband had pointed out, impugned judgment was made
under section 13-B in Hindu Marriage Act, 1955. Mr. Tripathy
submits, the appeal is not maintainable.
// 2 //
2. We reproduce below paragraph 2 from our order dated 29th
November, 2023.
"2. We have perused impugned judgment. We notice
that the family Court said therein it tried for re-union
between the parties but no fruitful result could be
achieved. It also said both the parties were examined,
who supported the averments made in the petition. It said
still further, the Court is satisfied that the parties have
filed the joint petition out of their free-will and without
any compulsion in order to get their marriage dissolved.
All this stares in the face of appellant in urging ground of
appeal based on fraud. Furthermore, Mr. Tripathy
submits, ground of appeal cannot be said to be pleading
of fraud. Without prejudice, there is no such ground of
appeal."
3. Today, Mr. Satapathy relies on view taken by a Division
Bench of Delhi High Court in Matrimonial Appeal-Family Court
no.86 of 2020 by judgment dated 3rd June, 2020 (Anshu Malhotra
v. Mukesh Malhotra). He submits, the view was, aggrieved party to
a decree for divorce by mutual consent had to apply to the Court
which passed the decree. We reproduce below paragraph 22 of the
judgment (Supreme Today print).
// 3 //
"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."
(emphasis supplied)
// 4 //
4. The Delhi High Court though took the view but said it did not
deem it necessary to give a final opinion in this regard. Be that as it
may, in taking the view there was reliance on judgment of the
Supreme Court in Pushpa Devi Bhagat v. Rajinder Singh, reported
in (2006) 5 SCC 566, paragraph 17. The compromise decree under
consideration by the Supreme Court was not on a matrimonial
proceeding. The Supreme Court noticed that no independent suit can
be filed for setting aside a compromise decree on the ground that the
compromise was not lawful in view of the bar contained in rule 3A
under order XXIII, Code of Civil Procedure, 1908. The Supreme
Court said, the decreeing Court is to be approached.
5. The appeal is a matrimonial appeal under section 19 of the
Family Courts Act, 1984. Sub-section (1) in the section carries non
obstante clause regarding application of the Code of Civil Procedure.
We hasten to add that in other suits the bar under rule 3A of order
XXIII would not prevent a party to the suit, in which the compromise
decree was passed, to file separate suit alleging fraud in having
obtained the compromise.
// 5 //
6. Section 7 in the Family Courts Act specifically provides for
jurisdiction of the family Court. Furthermore there is specific bar
under section 19(1). Appellant by relying on view taken by the Delhi
High Court, cannot go back to the family Court with a suit or an
application for setting aside a decree passed by the said Court under
section 13-B in Hindu Marriage Act, 1955.
7. Confronted with this road block Mr. Satapathy submits, his
client still has remedy available under section 25 in Hindu Marriage
Act, 1955. His client is residing with her ex-husband's mother and the
child. These are events, which were not considered and can be
considered as subsequent events, being change of circumstances, for
his client to apply for maintenance, even by way of permanent
alimony.
8. Perused impugned judgment. We put query to Mr. Tripathy
regarding the judgment having been made by the Court without the
compromise petition being made a part of the judgment. It referred to
the petition filed for the judgment being made and nothing else. Mr.
Tripathy submits, the compromise petition was not required to be
made part of the judgment.
// 6 //
9. In view of last preceding paragraph, there is no impediment
and none by reason of statements made in the compromise petition,
for appellant-wife to apply for maintenance under section 25. In the
circumstances, there is no necessity to interfere with impugned
judgment in appeal.
10. With above observations the appeal is disposed of.
( Arindam Sinha )
Judge
( S. S. Mishra )
Judge
Prasant
Signed by: PRASANT KUMAR SAHOO
