1. Ex parte divorce decree obtained through alleged fraud and collusion — Application under Section 151 CPC to set aside decree — Challenge to High Court's order under Article 227. (Para 2 , 3 , 4 )
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1998 Supreme(SC) 304
SUPREME COURT OF INDIA
M. Jagannadha Rao, S. B. Majmudar
SANJAY SINGH, APPELLANT
Versus
GARIMA SINGH, RESPONDENT.
Civil Appeal No. 1311 of 1998 (Arising out of SLP (C) No. 12830 of 1996), decided on March 3, 1998.
A decree of divorce obtained by fraud on the court is void and can be set aside.
Headnote:
DIVORCE - HINDU MARRIAGE ACT, 1955 - SECTION 13-B - COLLUSIVE DECREE - SETTING ASIDE - EX PARTE DECREE - FRAUD ON COURT - IMPERSONATION - REMAND FOR FRESH TRIAL.
Fact of the Case:
The appellant and the respondent got married in 1973 and had three children. In 1995, the appellant allegedly filed a divorce suit against the respondent on the grounds of desertion and cruelty. The suit was disposed of ex parte and a decree of divorce was granted in favor of the appellant. The respondent filed an application under Section 151 of the Code of Civil Procedure (CPC) to set aside the ex parte decree, alleging that she had never filed the divorce suit. The trial court dismissed the application, holding that it was not maintainable. The respondent filed a revision petition in the High Court, which set aside the ex parte decree and remanded the suit for fresh trial.
Finding of the Court:
The High Court found that the ex parte decree was obtained by fraud on the court. It noted that the divorce petition was filed in hot haste and that the appellant had colluded with the respondent to obtain the decree. The High Court also found that the appellant had impersonated the respondent in order to file the divorce suit.
Issues: 1. Whether the ex parte decree was obtained by fraud on the court. 2. Whether the appellant had impersonated the respondent in order to file the divorce suit.
Ratio Decidendi: The Supreme Court held that the High Court was justified in setting aside the ex parte decree. The Court found that the record of the case showed that the decree was obtained by fraud on the court. The Court also found that the appellant had colluded with the respondent to obtain the decree. However, the Court vacated the finding of the High Court that the appellant had impersonated the respondent. The Court held that this finding was not necessary for the decision of the case and that it should be left open for consideration by the trial court in the remanded proceeding.
Final Decision: The Supreme Court dismissed the appeal, subject to the modification that the finding of the High Court that the appellant had impersonated the respondent was vacated.
Legal Category Hierarchy
Table of Contents
2. Whether the High Court erred in setting aside the decree without a full trial on the Section 151 application or by finding impersonation without sufficient evidence. (Para 5 )
3. The ex parte decree was obtained through collusion and fraud on the court, evidenced by procedural irregularities and failure to attempt reconciliation under the Hindu Marriage Act. (Para 6 )
4. A collusive decree obtained through fraud on the court, lacking judicial application of mind and statutory compliance, must be set aside to ensure substantial justice. (Para 6 )
5. Appeal dismissed; High Court order setting aside the ex parte decree affirmed, subject to vacating the specific finding regarding the use of an impostor. (Para 8 )
6. What constitutes a collusive decree of divorce that justifies setting it aside?
A decree is collusive when obtained through fraud on the court, characterized by haste, lack of judicial application of mind, non-compliance with service rules under Order V CPC, and failure to attempt reconciliation as mandated by Section 23(2) of the Hindu Marriage Act. (Para 6 )
7. Is a finding of impersonation necessary to set aside a decree if collusion is proven?
No. If the court finds that a decree was obtained through collusion and fraud on the court, the decree can be set aside even without a conclusive finding on whether an impostor was used to file the suit. (Para 6 , 7 )
8. What is the court's duty regarding the grant of divorce decrees under the Hindu Marriage Act?
Courts must ensure that collusive decrees are not granted. Parties must prove the ingredients for divorce under the Act, and the court must attempt reconciliation per Section 23(2) of the Hindu Marriage Act and relevant CPC rules. (Para 6 )
ORDER
1. Leave granted.
2. With the consent of learned counsel for the parties, this appeal was heard finally. The High Court in a proceeding under Article 227 of the Constitution of India which was converted from one under Section 115 of the Code of Civil Procedure, has set aside an ex parte decree for divorce granted by the learned trial Judge in a suit alleged to be filed by the respondent-wife.
3. A few relevant facts leading to these proceedings may be stated. The appellant and the respondent got married at Allahabad on 14-12-1973. Out of that wedlock two daughters and a son were born. It appears that subsequently there was some estrangement between the spouses. The allegation of the respondent-wife is that the appellant-husband got filed a Civil Suit No. 78 of 1995 in the name of the respondent for getting divorce on the ground of desertion and cruelty on the part of the appellant. It appears that the said suit got hurriedly disposed of by an ex parte decree dated 27-3-1995 and thereafter the appellant-husband is said to have entered into a second marriage with another spouse on 21-4-1995. Having come to know about the same, the respondent-wife filed two proceedings. She filed a substantive Civil Suit No. 271 of 1995 in the same Court of learned Civil Judge, Sitapur for a declaration that the ex parte decree was null and void as she had never filed the said suit for getting her marriage dissolved through the Court. She also filed an application under Section 151 of the Code of Civil Procedure before the trial court alleging that the ex parte decree was null and void as she had never filed the said suit which is said to have got decreed ex parte. It is that application which was treated by the learned trial Judge to be not maintainable because the respondent had already filed a civil suit wherein all these disputed questions of fact could be examined on evidence.
4. The respondent carried the matter in revision under Section 115 of the Code of Civil Procedure challenging the said decision of the trial court passed in an application under Section 151 CPC. The appellant raised a preliminary objection that the revision application was not maintainable. Learned Single Judge of the High Court before whom the revision application was moved thought it fit not to consider that preliminary objection and decided to exercise her powers under Article 227 of the Constitution of India. She called for the records of the civil suit in which the impugned ex parte decree was said to have been passed and after hearing the parties through their counsel for a number of days and as we are told, spreading over about a month, the impugned order was passed by the learned Single Judge of the High Court setting aside the ex parte decree and allowing the application of the respondent-wife under Section 151 CPC. Learned Single Judge after minutely examining the records came to the conclusion that even assuming that the suit was filed by the real respondent Smt Garima Singh, when the suit had proceeded in hot haste and resulted in an ex parte decree in a quick succession of events, which were spread over from 25-2-1995 to 27-3-1995, it became clear that the ex parte decree was a result of complete non-application of mind on the part of the learned trial Judge and it reflected a clear case of fraud on the Court as it amounted to snatching a decree of divorce from the Court in the absence of any real case being made out by either side. However, while coming to this conclusion, learned Single Judge also held that it appeared that the appellant got this decree by getting an impostor to file the said suit. On all these grounds, therefore, the ex parte decree was set aside and the suit was remanded for fresh trial. It was also directed that the suit may be tried by a Judge other than the Judge who earlier tried the suit.
5. Learned Senior Counsel for the appellant in support of his appeal vehemently contended that even if the High Court was justified in tak
