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Smt. Kamla Devi Vs. Rajendra Pal Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 195 of 1971
Judge
Reported inAIR1972All338
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96(3) and 100; Hindu Marriage Act, 1955 - Sections 10 and 13
AppellantSmt. Kamla Devi
RespondentRajendra Pal Singh
Appellant AdvocateD.P.S. Chauhan, Adv.
Respondent AdvocateS.K. Tewari, ;S.N. Misra and ;H.C. Rastogi, Advs.
DispositionAppeal allowed
Excerpt:
family - consent decree - section 96 (3) of code of civil procedure, 1908 - compromise decree paned - nothing to show that grounds under sections 10 and 13 of hindu marriage act, 1955 made - held, decree pored was beyond the jurisdiction of court and against the provision of law - appeal allowed. - - the principle that a decree for dissolution of marriage cannot be passed by consent is based on certain good principles......act, no decree could be passed on the basis of the compromise or consent and therefore the decree passed by the lower appellate court on the basis of the compromise was without jurisdiction and, as such, it should be set aside. the learned counsel for the respondent contended that under section 96(3), c.p.c., no appeal . lies against a consent decree and therefore the second appeal was incompetent. his argument was that the hindu marriage act provided a right of appeal under section 28 but the procedure had to be followed as laid down in the code of civil procedure and as the decree was passed on a compromise and as it was a consent decree, therefore, this decree was not appealable. i have perused section 96(3), c.p.c. the relevant clause reads as below:'no appeal shall lie from.....
Judgment:

K.N. Srivastava, J.

1. This is an appeal by the defendant-appellant arising out of the following facts:

The plaintiff-respondent filed a petition under Sections 10 and 13 of the Hindu Marriage Act for dissolution of marriage and a decree for divorce. The parties were married according to Hindu rites on 1-5-1962. The plaintiff contended that the marriage was solemnised at Ujhani District Budaun. He also contended that for some time the appellant lived with him and then went to her father's house. In spite of the plaintiff's attempt, she did not return. It was alleged that the defendant-appellant was a woman of loose morals and there have been threatson her behalf to kill the plaintiff.

2. The petition was opposed by the appellant and inter alia it was pleaded that the marriage took place at village Kalva Bhoj District Shahjahanpur and the Budaun Court had no jurisdiction to try the suit.

3. The trial Court held that the marriage took place at Kalva Bhoj District Shahjananpur and the Budaun Court had no jurisdiction to try the petition. The petition was then ordered to be returned for presentation to the proper court. It was against this decree that the plaintiff-respondent filed an appeal. In the lower appellate Court, the parties entered into a compromise on 23-10-1970. It was verified by the plaintiff-respondent and the counsel for the defendant-appellant. The lower appellate Court then passed a decree on the basis of the compromise and ordered that the compromise shall form part of the decree.

4. The defendant-appellant has filed this appeal. The main contention of the learned counsel for the defendant-appellant was that in a suit under Section 10 or 13 of the Hindu Marriage Act, no decree could be passed on the basis of the compromise or consent and therefore the decree passed by the lower appellate Court on the basis of the compromise was without jurisdiction and, as such, it should be set aside. The learned counsel for the respondent contended that under Section 96(3), C.P.C., no appeal . lies against a consent decree and therefore the second appeal was incompetent. His argument was that the Hindu Marriage Act provided a right of appeal under Section 28 but the procedure had to be followed as laid down in the Code of Civil Procedure and as the decree was passed on a compromise and as it was a consent decree, therefore, this decree was not appealable. I have perused Section 96(3), C.P.C. The relevant clause reads as below:

'No appeal shall lie from a decree passed by the court with the consent of parties.'

5. This provision applies only to such cases where a decree could be passed on the basis of consent and would not apply to cases where no decree could be passed on the basis of consent. The reason for the same is quite obvious. Once the parties came to terms and consented to a decree, they cannot be permitted to go behind the consent given by them and come in appeal to challenge the decree. In the instant case, they were not competent to come in appeal for dissolution of, the marriage. The suit for dissolution of marriage under the Hindu Marriage Act can be filed on the grounds mentioned in Sections 10 and 13 of the Act. No decree for dissolution of marriage could be passed beyond the grounds mentioned in these sections. The principle that a decree for dissolution of marriage cannot be passed by consent is based on certain good principles. There might be a case when the grounds mentioned under Sections 10 and 13 are not made out but for their convenience's sake, the parties may agree to get the marriage dissolved. This is what the Act does not contemplate and therefore a decree for dissolution of marriage can be passed only on the grounds mentioned in Sections 10 and 13 of the Act. A perusal of the compromise would go to show that there was nothing in it to show that the grounds mentioned in Sections 10 and 13 were made out. All that was mentioned in the compromise was that it was not a collusive compromise Thus the decree passed on the basis of this compromise was a decree without jurisdiction.

6. The learned counsel for the respondent contended that there is a mention in the compromise that the respondent has danger of his life from the side of the appellant but this is one sided statement and even if it was so, this ground could not be accepted on the consent of the parties. There should have been independent proof of this ground. In this view of the matter, Section 96(3), C.P.C. would not apply to the facts of this case because Section 96(3), C.P.C. speaks of decrees based on consent and in cases where legally a decree could be passed on the basis of consent. It does not apply to cases where no decree could be passed on the basis of consent. This argument has therefore no force in it.

7. The other question which, was raised in this appeal by the learned counsel for the appellant was that the decree being passed on the basis of a compromise against the provisions of the Hindu Marriage Act, it was liable to be set aside in this second appeal. A decree passed on wrong application of law or on a finding which is perverse can always be set aside in second appeal. This decree was passed against the provisions referred to above and, as such, it was beyond the jurisdiction of the lower appellate Court. Besides this, there was a serious dispute between the parties as to whether Budaun court had jurisdiction to try this petition. The trial Court had decided this issue against the respondent and held that the Budaun court had no jurisdiction to try this petition as the marriage had taken place in Kalva Bhoj, District Shahjahanpur. In this view of the matter, the lower appellate Court should not have decided the suit unless it reversed the finding of the trial Court that the Budaun court had no jurisdiction to try this petition.

8. The marriage ties have not to be set aside lightly without a strict enquiry because the court has to guard itself against an endeavour of a party to obtain a collusive decree. My above opinion that a decree for dissolution of marriage cannot be passed by the consent of the parties under the Hindu Marriage Act is also supported by a Division Bench case of this Court in Smt. Hirakali v. Dr. Ram Asrey Awasthi, AIR 1971 All 201. In this view of the matter, the appeal succeeds.

9. The appeal is allowed. The decree passed by the lower appellate Court on the basis of the compromise is set aside. The case is remanded to the lower appellate Court for re-registering the appeal at its original number and to decide it in accordance with law. Costs of this appeal shall abide the decision of the case in the lower appellate Court.


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