SANDEEP KAUR Vs. JAGJIT SINGH

JUDGEMENT

(1.) The parties before this Court, i.e. the appellant - Sandeep Kaur and the respondent - Jagjit Singh, had obtained a decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 ('Act' - for short) vide judgment and decree dated 31.05.2016.

(2.) An appeal under Section 28 of the Act has been filed after expiry of 584 days claiming that with the intervention of respectables and common friends in view of the interest of minor children born out of the wedlock, a compromise has been arrived at between the parties on 21.03.2018. It is averred that both the parties have started living together w.e.f. 18.03.2018 and at present there is absolutely no grudge or grievance against each other. In view of the above-said subsequent events, the present appeal has been filed for setting aside the judgment and decree of divorce obtained by the parties with the consent of each other.

(3.) We have considered the maintainability of the appeal in the light of the provisions of Section 28 of the Act as well as in the light of the provisions of Section 96 (3) of the Code of Civil Procedure, 1908 ('CPC' - for short). It is settled rule of law that appeal is a creation of Statute. Section 96 (3) of the CPC specifically provides that no appeal shall lie from a decree passed by the Court with the consent of the parties. It is also not disputed that when a decree is obtained without free consent of the parties, it is always open to any of the parties to approach the same Court for setting aside of the consent decree by establishing the ground of consent having been obtained by fraud, undue influence or coercion. In the present case, the appeal has not been filed on the basis of fraud having been played by any of the parties but the appeal has been filed on the basis of subsequent events of consent having been withdrawn after obtaining the decree of divorce. When confronted regarding the maintainability of the appeal, learned counsel for the appellant relies upon a Division Bench judgment of this Court in Krishna Khetarpal v. Satish Lal, 1987 1 HinduLR 36, wherein the basic question to be determined was whether a marriage could be dissolved by a decree of divorce on the basis of compromise without following the procedure under Section 13B (2) and without satisfying the requirement of Section 23 (1) (c) of the Act. So far as the maintainability of the appeal against a consent decree is concerned, few parameters have been laid down in para No.5 of the judgment holding that an appeal against a consent decree is not a bar subject to the approval of the Court on satisfaction of certain terms mentioned therein. The learned counsel for the appellant has not been able to satisfy this Court that any such condition is fulfilled in the present case. Moreover, the said judgment does not lay down any absolute rule of law as to under what circumstances an appeal would lie against a consent decree in a matrimonial case.