PUSPALATA ROUT Vs. DAMODAR ROUT

JUDGEMENT

(1.) This revision by the wife is directed against an appellate decision upsetting an order of the trial court recalling a decree passed by it under S.13-B of the Hindu Marriage Act dissolving the marriage between the petitioner and the opposite party by a decree of divorce by mutual consent.

(2.) The undisputed facts are that the marriage between the parties was solemnised on 18-6-1979. The first issue was born on 12-5-1980 and the second on 19-8-1981. On 9-2-1982 a joint petition was filed by the parties under S.13-B of the Hindu Marriage Act (for short, 'the Act') for dissolution of marriage by a decree of divorce alleging that both the parties had fallen out and were living separately since 16-12-1980; the petitioner had deserted the opposite party and was residing at her father's place; attempts to bring about reconciliation between them had failed. The application was filed through a common lawyer. On 10-8-1982 just on completion of six months, a joint petition was filed by the parties making a motion for dissolving their marriage by a decree of divorce. The court examined the petitioner and the opposite party. She deposed that she was living separately from her husband since 16-12-1980 and there was no collusion in filing the petition and she was willing for a divorce. So did the husband. Thereupon the learned Subordinate Judge passed a decree of divorce dissolving the marriage. On 23-8-1982 a petition was filed by the petitioner under S.151 read with O.47, Rule 1 of the Code of Civil Procedure (for short, 'the Code') for recall of the order/decree passed on 10-8-1982. The gravamen of the allegations was fraud and collusion. She alleged that she had lived with the opposite party till 17-8-1982, even after the filing of the application for passing a decree. The opposite party controverted the allegations. During the hearing, three affidavits were filed on behalf of the petitioner. The first one was of Agadhu Charan Naik who stated on oath that his taxi was hired by the opposite party on 17-8-1982 to carry the petitioner from the husband's residential quarters at Unit-IX Bhubaneswar to her father's place at Sankarpur, Cuttack. The second one of Nimai Charan Behera was to the effect that the petitioner was living with the opposite party till 17-8-82 and the third one of Gobind Chandra Mohanty was also to the same effect. No evidence was laid by the opposite party by way of oral evidence or through affidavits. The learned Subordinate Judge upon a consideration of the materials and the circumstances, held that fraud had been practised on the petitioner and on the court for obtaining a collusive decree of divorce. Upon the aforesaid holding the decree of divorce was recalled. The opposite party's appeal against the aforesaid order having been allowed, this Court in Civil Revision No. 279 of 1983 directed the appellate court after setting aside the appellate order to rehear the matter afresh. Upon rehearing the appellate court held that the application for recall of the decree under Section 151 of the Code was not maintainable. Hence, the present revision by the wife.

(3.) Two questions fall for consideration : (a) whether a consent decree obtained by exercise of fraud, undue influence or coercion is liable to be recalled or set aside by the court passing the decree in exercise of its inherent power and (b) if the trial court was right assuming it had jurisdiction under S.151 C.P.C. in recalling its decree on the facts and in the circumstances of the case.