Decree of divorce by mutual consent is appealable where the consent itself is disputed
[Pooja v. Vijay Chaitanya, 2018 SCC OnLine All 513, dated 06.04.2018]
An appeal filed by the wife against the decree of divorce by mutual consent, was allowed by a Division Bench comprising of Pankaj Mithal and Rajiv Joshi, JJ.
A decree was passed by the family court under Section 13-B of Hindu Marriage Act (HMA), 1955 for dissolution of the marriage of the appellant-wife and her husband by mutual consent. The wife preferred the appeal under Section 28 HMA read with Section 19 of Family Courts Act 1984, against the said decree contending that her consent was obtained by undue influence.
The question before the Court was ‘whether an appeal under Section 19 of Family Courts Act would lie against a decree passed under Section 13-B HMA?’
The Court perused Section 13-B and held that a decree of divorce by mutual consent could be passed by the Court only if all the conditions mentioned under the said Section are complied with. The Court referred to Section 23(1) (bb) and relying on Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, held that before passing a decree under Section 13-B, the Court must satisfy itself that the consent of the parties was not obtained by coercion, fraud or undue influence. Further, Section 28 HMA did not place any rider on appeals against a consent decree under the Act. In light of the discussion as mentioned herein, the Court admitted the appeal and directed the issuing of notice to the respondent. [Pooja v. Vijay Chaitanya, 2018 SCC OnLine All 513, dated 06.04.2018]