The voluntary nature of a compromise and the applicability of appeal provisions when there is a contest over a compromise.

JUDGMENT :

Heard both side.

Aggrieved by the compromise decree dated 08.04.2014 the petitioner in M.C.No.49/2011 on the file of the Civil Judge (Sr.Dn) & CJM, Chamarajanagar has preferred this appeal.

2. For the purpose of convenience, the parties will be referred according to their ranks before the trial Court.

3. The petitioner and respondent are Hindus. Their marriage was solemnized on 20.04.2007 as per their custom and rituals. The petitioner filed M.C.No.49/2011 under Section 13(1) (ia) and (ib) of Hindu Marriage Act, 1955 (‘the Act, 1955’ for short) against the respondent seeking decree of dissolution of marriage on the ground of cruelty and desertion. The respondent contested the said petition by filing his statement of objection.

4. After both the parties adduced their evidence and when the matter was listed for arguments on 08.04.2014 a compromise petition was filed before the trial Court. It was stated in the compromise petition that the marriage between the parties is irretrievably broken down and at the advise of elders and well wishers the respondent has given consent for dissolution of marriage. It was further stated in the compromise petition that the petitioner has given up her right for permanent alimony. The trial Court by the impugned order on the same day recorded the said compromise petition and passed the impugned compromise decree dissolving the marriage.

5. The petitioner-wife challenges the said decree in this appeal on the ground that she is illiterate, does not know the contents of the compromise petition and the implications of the same was not explained to her and she had not received any amount as stated in Ex.R1. In other words, she states that the alleged compromise petition was fraudulent one and consequently the impugned compromise decree was the outcome of the fraud. She further claims that to evade his liability of permanent alimony, the respondent-husband managed to get such compromise petition and the compromise decree.

6. The contention of the counsel for the respondent-husband is that in view of Section 96(3) of CPC the appeal against the compromise decree is not maintainable.

7. This is an appeal preferred against the order of learned Senior Civil Judge & CJM, Chamarajanagar and this is not an appeal against the order passed by the Family Court. Therefore, though the appeal memorandum is purportedly filed under Section 19 of the Family Courts Act, 1984, the applicable appeal provision is Section 28 of the Act, 1955. Section 28(1) of the Act, 1955 stipulates that all decrees made by the Court in any proceeding under the Act shall subject to provisions of the Act and are appealable as decrees of the Court and appeal lies to the Court to which the Court ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction. The exceptions are the one provided in Sub-Sections (2) to (4) of Section 28. Sub-section (2) and (3) of Section 28 state that no appeal lies against the interim order and against the order on costs.

8. In the present case, the appeal is not covered under the exceptions to Section 28(1) of the Act, 1955. Further the larger bench of the Hon’ble Supreme Court in para 7 of the judgment in Kishun @ Ramkishun (dead) through by LRs vs. Behari (dead) by LRs, (2008) 6 SCC 300 has held as follows :

“7. That apart, we are of the view that the High Court was in error in holding that the appeal filed by Kishun against the decree of the trial court accepting a compromise which was disputed by him, was not maintainable. When on a dispute in that behalf being raised, an enquiry is made (now it has to be done in view of the proviso to Order XXIII Rule 3 of the Code added by Act 104 of 1976) and the suit is decreed on the basis of a compromise based on that enquiry, it could not be held to be a decree passed on consent within the meaning of Section 96(3) of the Code. Section 96(3) contemplates non-appealability of a decree passed by the court with the consent of parti