Pushpa Devi vs Tinku Kumar

At the time of hearing of this case, a question has arisen as to whether the appeal would be maintainable in view of the bar provided by the statute for

entertaining of such appeal under Section 19 (2) of the Family Courts Act, 1984 (hereinafter in short referred to as the “Actâ€)? The aforesaid

issue has been raised on behalf of the respondent.

Following facts are necessary to be noted for better appreciation:-

The marriage between the parties was solemnized in the year 2009. It appears that a petition under Section 13 B of the Hindu Marriage Act was filed

by the parties for grant of divorce with mutual consent which was effectually granted by judgment and order dated 03.06.2016 passed in Matrimonial

Case No.166 of 2015.

The appellantâ€s case is that she was never asked by the Court on any of the occasions whether she was willing for any decree of divorce. A

fraudulent affidavit was filed by the respondent and the decree has also been obtained by playing fraud, collusion, coercion and misrepresentation upon

her.

Now the question would be as to whether the appeal would be maintainable in view of the bar created under Section 19 (2) of the Act. For better

appreciation the aforesaid provision is incorporated as under:

19 (1). xxxxxxxxxxx

(2). No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties.

Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of

Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991.

(3). xxxxxxxxx

(4). xxxxxxxxx

From bare perusal of the aforesaid, it appears that the appeal would not be maintainable but the question is as to whether, if the judgment has been

procured by one of the parties by playing fraud, collusion, coercion and misrepresentation, still the bar created by Sub-section (2) would operate?

The pari materia provision is there under Section 96(3) of the Code of Civil Procedure (hereinafter in short referred to as the “CPCâ€), which is

also extracted as under for better appreciation:

96 (3) No appeal shall lie from a decree passed by the Court with the consent of parties.

However, when issue arose as to whether in case of claim of one of the parties that the decree of compromise has been obtained by playing fraud,

collusion, coercion and misrepresentation, the appeal would be available or not? The Honâ€ble Apex Court in Banwari Lal versus Chando Devi (Smt)

(Through LRs.) rendered in (1993) 1 Supreme Court Cases 581 has answered the issue in affirmative holding that the appeal would be available under

96 (1) of the CPC even though such bar is provided under Section 96 (3) of the CPC. This answer was given after consideration that earlier there

was a provision for challenging such decree of compromise under Order 43, Rule l (m) of the CPC but later on that was omitted by the Legislature.

However, while doing that, Rule 1-A(2) was inserted after Order 43 Rule 1 which provides as follows:

“1-A. Right to challenge non-appealable orders in appeal against decree.- (1) Where any order is made under this Code against a party and

thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree contend that such

order should not have been made and the judgment should not have been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to

contest the decree on the ground that the compromise should, or should not, have been recorded.â€​

After considering the entire provisions of Order 23 CPC in particular Rule 3 thereof regarding compromise of suit and also after noticing the

explanation thereof that an agreement for compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within

the meaning of the said Rule and the question is as to whether such compromise was entered by fraud, collusion, coercion and misrepresentation

would come under such explanation or not, the Honâ€ble Supreme Court came to the conclusion that the bar under Rule 3-A has been introduced

after noticing the aforesaid proviso along with explanation in Rule 3 in order to avoid multiplicity of the suit and prolonged litigation so that a separate

suit for setting aside the decree on the basis of compromise is not filed. At the same time, if claim of one of the parties to the compromise that the

same has been obtained by playing fraud, collusion, coercion and misrepresentation upon him/her then what would be the remedy? It has been

answered that a bar operating under Section 96 (3) CPC would be operational only where the factum of compromise or agreement is not in dispute

otherwise there has already been a provision under Order 43 Rule 1-A (2) CPC to question the granting of opportunity to the concerned and the

validity of the compromise by preferring appeal against the decree. Thus, the appeal would be available under 96 (1) of the CPC in such a situation.

A Single Bench of this Court also, while dealing with the issues in Smt. Prabhawati Sinha versus Heera Rai and others [2010 (1) PLJR 560], has

taken a view that in such a situation when the compromise is being challenged on the ground of fraud, collusion, coercion and misrepresentation etc.

two options would be available to such person. First would be to file a petition under Section 151 of CPC before the same Court which has passed the

decree of compromise for recall of the decree of compromise on the ground of fraud, collusion, coercion and misrepresentation etc. Secondly, the

appeal under Section 96 (1) CPC also would be available to such person. Both in view of the decision in the case of Banwari Lal (supra).

Now, the question would be as to whether same view can be taken when an appeal is being filed under Section 19(1) of the Family Courts Act, 1984,

in view of identical bar which has been created by Section 19 (2) of the Act? By looking to the aforesaid provisions and comparing it with the

provision contained in Section 96 (3) CPC, it would appear that both the provisions are pari materia.

Thus, the view which has been formed by the Honâ€ble Apex Court regarding the bar created under Section 96 (3) CPC would be available to only

such cases in which compromise has taken place and the factum of compromise or agreement is not in dispute, in our considered opinion, same has to

be applied with respect to the bar which has been created by Section 19 (2) of the Act also as a person cannot be left remediless. If a

judgment/decree of compromise is admitted then the bar would operate but if the judgment of compromise is vitiated by action of fraud, collusion,

coercion and misrepresentation etc. then the right of appeal cannot be taken away. It would be relevant to mention here that a Division Bench of this

Court in M.A. No.70 of 2016 (Sweta Singh Vs. Sri Birendra Kumar), on anxious consideration of all the provisions, came to the opinion that if the

statutory provisions of Family Courts Act, 1984 are not in conflict with any provision of the CPC then such provision of CPC would be applicable in

the cases covered by the Family Courts Act in view of the provisions contained in Section 10 thereof.

We are of the view that in the case of judgment passed on consent given by the parties, if it is alleged by one of the parties that such judgment was

obtained by fraud, collusion, coercion and misrepresentation then that would vitiate the entire proceedings. In such a situation, the appeal would be

available even in presence of bar created under Section 19 (2) of the Act which would only be applicable where the factum of compromise or

agreement is not in dispute. However, at the same time, a remedy would also be available for the parties to move before the same Court under

Section 151 CPC for recall of the judgment/decree.

Accordingly, this appeal is held to be maintainable.

Heard parties on merit of appeal at this stage on consent given by them.

Admit.

No notice is required to be issued upon the respondent as Mr. Surendra Kumar Mishra, learned counsel appears and accepts the notice on his behalf.

Call for the lower court records of Matrimonial Case No.166 of 2015 from the Court of Principal Judge, Family Court, Rohtas at Sasaram.