Sau. Sonali vs Yeshwant

C.V. Bhadang, J—By this appeal, the appellant-original applicant No. 2 is challenging the judgment and order dated 15.3.2013 passed by the learned Judge, Family Court at Akola. By the impugned judgment and order, the petition bearing No. F-31/2012 jointly filed by the appellant and the respondent under Section 13-B of the Hindu Marriage Act, 1955 (Act of 1955 for short) has been allowed thereby dissolving the marriage between the parties by a decree of divorce.

The brief facts are that the appellant and the respondent were married on 12.6.2005 at Nanded. The parties were blessed with two sons namely, Sarvadnya, aged about 5 years and Bhushan, aged about 3 years. According to the appellant, the respondent subjected her to mental and physical cruelty. However, the appellant continued to cohabit with the respondent hoping against hope that over a period of time, the behaviour of the respondent would improve. It appears that the matrimonial relationship between the parties soared which ultimately led the parties to approach the Family Court, under Section 13-B of the said Act, for dissolution of marriage. That application being petition No. F-31/2012 was jointly filed by the appellant and the respondent. It appears that the learned Judge of the Family Court verified the contents of the petition from the parties and they admitted the contents to be correct and it is so recorded vide order dated 11.9.2012 below Exh. 1. The matter was then adjourned for further consideration. It further appears that the learned Judge of the Family Court recorded the statements of the appellant and the respondent on oath on 15.3.2013. The parties admitted that they were married on 12.6.2005 at Nanded as per the customary rites prevailing in their community. Both of them had resided as husband and wife at Akola and had two issues from the said wedlock. They further stated that they have been staying separately since 13.3.2011 and on account of differences of opinion and incompatibility of temperament, were unable to continue as husband and wife and had decided to seek divorce by consent voluntarily. On the same day, the learned Judge of the Family Court passed the impugned judgment thereby allowing the petition. The appellant-wife has now filed this appeal alleging that the respondent had practiced fraud and had obtained the decree of divorce by mutual consent. It is contended that the appellant is educated up to 10th Standard and cannot read, write or understand English. On account of false assurance and misrepresentation of the respondent, the said petition came to be filed before the Family Court and the consent is not free and is tainted with fraud. She has, therefore, prayed for setting aside the impugned judgment and decree.

We have heard Shri Shinde, the learned counsel for the appellant and Shri Wankhede, the learned counsel for the respondent.

It is submitted on behalf of the appellant that a petition under Section 13-B of the said Act presupposes ''consent'', which is free from any misrepresentation, fraud or inducement. It is submitted that otherwise it would be no consent in the eye of law. It is submitted that the appellant is educated up to 10th Standard and does not understand English. The learned counsel has submitted that her signature was obtained on the petition for divorce by playing fraud and misleading the appellant. The learned counsel has placed reliance on the decision of the Hon''ble Supreme Court in Balwinder Kaur Vs. Hardeep Singh, AIR 1998 SC 764 : (1997) 2 DMC 671 : (1997) 9 JT 157 : (1998) 118 PLR 655 : (1997) 7 SCALE 37 : (1997) 11 SCC 701 : (1997) 5 SCR 202 Supp : (1997) 2 UJ 848 : (1998) AIRSCW 474 : (1997) 9 Supreme 374 and decision of this court in Sau. Sushama Taksande Vs. Shri Pramod Taksande, AIR 2009 Bom 111 : (2009) 3 BomCR 753 : (2009) 111 BOMLR 1804 : (2009) 4 MhLj 81 . It is submitted that unless and until the court finds and records its satisfaction in terms of the requirements of Section 23(1)(bb) of the said Act, no decree of divorce, based on consent can be passed. He, therefore, submitted that the impugned judgment and decree needs to be set aside.

On the contrary, it is submitted by the learned counsel for the respondent that the ground based on fraud would require clear pleadings supported by proof, in order to show that the appellant was misled on account of any fraud or misrepresentation practiced by the respondent. It is submitted that in a case of present nature, fraud cannot be lightly inferred, particularly when the competent court had verified the correctness of the contents of the petition from the parties and both the parties had also supported the petition by way of an affidavit. He, therefore, submitted that the appeal be dismissed.

We have considered the rival circumstances and the submissions made. Section 10 of the Family Courts Act, 1984 (Act of 1984 for short) provides that subject to the provisions of the Act of 1984 and the rules framed thereunder, the provisions contained in Code of Civil Procedure, 1908 apply to the proceedings before a Family Court, except the proceedings under Chapter IX of the Code of Criminal Procedure, 1973. Thus, it can be seen that subject to the provisions of the Act of 1984 and the rules framed thereunder, so far as the procedure before the Family Court is concerned, it is governed by the Code of Civil Procedure. Section 96 (3) of the Code of Civil Procedure would make it clear that no appeal shall lie from a decree passed by the court with the consent of the parties. Similar provisions can be found in Section 19 (2) of the Act, 1984 which provides that no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties. Thus, we find that on first principle, the appeal, as framed and filed, cannot be entertained. However, this presupposes that ''consent'' on the basis of which the impugned judgment and decree is passed is a ''consent'' as is envisaged in law. In other words such a consent has to be out of free volition of the parties, uninfluenced by any considerations, arising out of undue influence, inducement, fraud, misrepresentation or promise.

The question, whether the respondent has practiced fraud and whether the impugned judgment and decree is vitiated on account of absence of a free consent or a consent based on fraud or misrepresentation, is always a question of fact to be determined on the basis of pleadings and the evidence led in support thereof. It is further well settled that the court would be slow in inferring or accepting the said case based on fraud and fraud cannot be lightly inferred. The party has to come up with clear pleadings supported by evidence in order to require the court to act on the basis of a plea of fraud.

In the case of Sushama Taksande (supra), this court had found that while passing decree under Section 13-B of the Act of 1955, the court has to satisfy itself that the consent was not obtained by force, fraud or undue influence and the order granting decree for divorce by mutual consent should show that the court had reached the satisfaction, as is required by Section 23(1)(bb) of the Act of 1955. In the present case, we find that the learned judge of the Family Court had verified the contents of the petition from the parties and even during her statement on oath, the appellant had accepted that the petition was filed out of free will and consent. The impugned judgment would also show that the court had recorded satisfaction to that effect.

The judgment in the case of Balwinder Singh (supra) arose out of the proceedings under Section 13 of the Act of 1955 and not under Section 13-B of the said Act. Moreover, in that case, an ex parte decree of divorce was granted by the District Judge, which was subject matter of an appeal before the High Court and, thereafter, before the Hon''ble Supreme Court. We find that the present case is clearly distinguishable on facts, as it arises out of proceedings under section 13-B of the said Act, 1955.

Turning to the facts of the present case, it would be worthwhile to reproduce para (iv) of the appeal memo, which sets out the nature of the fraud allegedly practiced.

"(iv) The appellant submits that her husband had by playing fraud and misleading the appellant, had obtained her signature on the mutual divorce petition and he had assured the appellant that until and unless, their marriage was dissolved, he will not get promotion in his service. Furthermore, the appellant will also not get government job as the appellant was not educated and relying upon the aforesaid assurance and with a hope of ray that divorced wife will get a government job, she had signed the said divorce petition."

Prima facie, we are not inclined to accept the case of fraud based on the aforesaid allegations. However, in order to afford fair and reasonable opportunity to the appellant in the matter, we find it appropriate to grant her an opportunity to approach the Family Court against the impugned order, if so advised, setting out the nature of the fraud. If such an application is made, the learned Judge of the Family Court would consider the same on merits, uninfluenced by any of the observations herein. Subject to this, we do not find that any case for interference is made out. In the result, the appeal is dismissed, with no order as to costs.