Sangita Kumari Bharti vs Mithilesh Kumar

The aforementioned Interlocutory Application has been filed for condonation of delay of 3 years 10 months 27 days in filing the present Miscellaneous

Appeal.

Though day-to-day delay has appropriately not been explained, but in view of the ratio laid down by the Supreme Court in the case of Esha

Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Ors. Reported in (2013) 12 SCC 649 = 2014(1) PLJR 2 9t0o the

effect that the exercise of judicial discretion of the Court while considering to condone the delay, it should be exercised in positive manner if there is

no presumption that the delay is occasioned deliberately or on account of culpable negligence and since the substantial justice is the paramount and

pivotal, the technical considerations should not be given undue and uncalled for emphasis and that there should be a liberal, pragmatic, justice-oriented,

non-pedantic approach while considering an application for condonation of delay, the delay in filing the present appeal is hereby condoned.

Heard learned counsel for the appellant.

The present Miscellaneous Appeal has been preferred for setting aside the judgment and decree dated 20.5.2014 passed by the learned Principal

Judge, Family Court, Nalanda at Biharsharif in Divorce Case No. 200 of 2012 whereby the marriage between the appellant and respondent has been

dissolved on the basis of mutual consent under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act).

The factual matrix of the case is that the marriage of the appellant and the respondent was solemnized on 26.5.1998 as per Hindu rites and customs.

For a considerable period, they led a happy conjugal life. In 2009, the husband of the appellant got employment in Central Government and thereafter

the respondent- husband filed Matrimonial (Divorce) Case No. 133 of 2011 in the Court of the learned Principal Judge, Family Court, Nalanda at

Biharsharif under Section 13 of the Act with a prayer for dissolution of marriage on the ground of cruelty and desertion. However, subsequently, on

17.9.2011, a joint compromise petition was filed with the signature of both the appellant and the respondent stating that the differences between them

has been settled amicably and they are enjoying the happy conjugal life. Accordingly, the Matrimonial (Divorce) Case No. 133 of 2011 was disposed

of by the learned Principal Judge, Family Court, Nalanda vide judgment dated 17.9.2011 in terms of the compromise. Thereafter, the respondent-

husband filed Matrimonial (Divorce) Case No. 200 of 2012 on 1.9.2012 before the learned Principal Judge, Family Court, Nalanda under the

provisions of Section 13-B of the Act. The said suit was admitted vide order dated 22.9.2013.

The matter was referred to Lok Adalat vide order dated 14.12.2013 where attempt was made to resolve the issue. The order dated 21.12.2013

reflects that both the parties were ready to resolve the issue but the Lok Adalat directed for appearance of the parents of both sides. The matter was

adjourned to 20.5.2013. On 20.5.2013, an application was filed on behalf of both the appellant and the respondent that the parents of both sides are not

willing to appear before the Court since they felt that the appellant and the respondent are free to express their views. Consequently, vide order dated

20.5.2014 the learned Principal Judge, Family Court, Nalanda sought to mediate the issue between the parties but both the appellant and the

respondent submitted that they have filed an application under Section 13-B of the Act with their consent and accordingly, the marriage between the

parties was directed to be dissolved with mutual consent. Ultimately, the decree was prepared, which is under challenge in the present Miscellaneous

Appeal basically on the ground that by playing fraud, with ulterior motive, the judgment and decree has been obtained. The appellant never instructed

any one to file such matrimonial suit with consent.

Having heard learned counsel for the appellant, from the materials on records and the pleadings of the appellant, it appears that the appellant has not

denied the filing of the Matrimonial Suit No. 200 of 2012 with the signature of the appellant and the respondent. The ground no. IX of the memo of

appeal suggests that impliedly the appellant has admitted the filing of application under Section 13-B of Hindu Marriage Act, but it was not filed with

her free will which reads as follows:

“For that the appellant has not filed the matrimonial case with her free will.â€​

From the order sheet brought on record by the appellant, it appears that the appellant and the respondent not only filed several petitions and affidavits

with their joint signature, like, the plaint of the suit, separate affidavit of the appellant, rather in Matrimonial Suit No. 200 of 2012, the petition was filed

on 20.5.2014 to the effect that their parents do not want to appear before the Court and thereafter, in the order dated 20.5.2014 the learned Court

below has recorded the said fact as -

“Punah Samjhauta ka prayas kiya gaya parantu samjhauta biphal raha. Ubhay paksha saath rahne ko taiyar nahi haiâ€​

Order VI of the Code of Civil Procedure (hereinafter referred to as the Code) deals with the pleading i.e. the plaint or written statement. Order VI

Rule 4 of the Code provides the particulars to be given where necessary â€" i.e., in all cases where the party pleading relies on any misrepresentation,

fraud, breach of trust, willful default or undue influence, the same should be stated in the pleadings. In none of the petitions filed, the appellant has

pleaded about fraud.

Order XXIII Rule 3 deals with the compromise of suit which mandates that where it is proved to the satisfaction of the Court that a suit has been

adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of

the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance

therewith but where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the

question of such disagreement. But, the appellant never raised such issue. The appellant ought to have filed an application under Section 151 of the

Code before the learned Principal Judge, Family Court, Nalanda questioning the legality and validity of the compromise as has been held in the case of

Banwari Lal Vs. Chando Devi (Smt.) (Through LRS.) and Anr., reported in (1993) 1 SCC 581. Paragraph 14 of the judgment reads as follows:

“14. The application for exercise of power under proviso to Rule 3 of Order 23 can be labelled under Section 151 of the Code but when by the

amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate

cases has to be exercised under the said proviso to Rule 3. It has been held by different High Courts that even after a compromise has been recorded,

the court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the compromise. Reference in

this connection may be made to the cases Tara Bai (Smt) v. V.S. Krishnaswamy Rao [AIR 1985 Kant 270 : ILR 1985 Kant 2930 ;] S.G. Thimmappa

v. T. Anantha [AIR 1986 Kant 1 : ILR 1985 Kant 1933 ]; Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh [AIR 1958 Pat 618 : 1958 BLJR 65 1;]

Mangal Mahton v. Behari Mahton [AIR 1964 Pat 483 : 1964 BLJR 727] and Sri Sri Iswar Gopal Jew v. Bhagwandas Shaw [AIR 1982 Cal 12] where

it has been held that application under Section 151 of the Code is maintainable. The court before which it is alleged by one of the parties to the alleged

compromise that no such compromise had been entered between the parties that court has to decide whether the agreement or compromise in

question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be

deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. The learned Subordinate Judge was perfectly

justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or

compromise on the basis of which the court could have recorded such agreement or compromise on February 27, 1991. Having come to the

conclusion on the material produced that the compromise was not lawful within the meaning of Rule 3, there was no option left except to recall that

order.â€​

In our considered view, the appellant cannot raise the question of fraud for the first time in the present appeal, particularly, in view of the fact that the

appellant has neither denied her signature on the plaint filed under Section 13-B of the Act, nor has she denied her appearance before the Court and

praying for dissolution of marriage.

In the circumstances, this Court finds that no specific material has been brought on record to substantiate that any fraud has been played upon the

appellant. Hence, the present Appeal has no merit.

Accordingly, this Miscellaneous Appeal is dismissed.