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ARIF S. DOCTOR, D. K. UPADHYAYA
Mrs. Shireen Kersi Dubash Parsi Indian Inhabitant – Appellant
Versus
Kersi Jai Dubash Parsi Indian Inhabitant – Respondent
JUDGMENT
Arif S. Doctor, J. - The present Appeal impugns an order dated 18th April 2017, by which the captioned Notice of Motion ('the said Notice of Motion') came to be dismissed. The said Notice of Motion was filed by the Appellant on 20th October, 2016 seeking to set aside a Decree of Divorce dated 8th December 1987 ('the said Decree') by which the marriage between the Appellant and the Respondent had been dissolved. Thus, admittedly, the said Notice of Motion was filed after over 28 years from the date of the Decree.
2. Before adverting to the rival contentions, it is useful to first set out a few facts, viz.
ii . It appears that thereafter there was some matrimonial discord between the Appellant and the Respondent, which led to both of them filing their respective Petitions under the provisions of The Guardians and Wards Act,1890 both seeking custody of their minor daughter. MPT No. 531 of 1987 was filed by the Respondent and MPT No. 532 of 1987
A party seeking to challenge a decree must do so within the prescribed limitation period, and claims of fraud must be substantiated by clear evidence; mere delay in seeking relief can bar the claim.
The main legal point established in the judgment is that an ex parte decree cannot be set aside on the ground of irregularity in the service of summons if the defendant had notice of the date of hear....
Written Statement – Assertion made in plaint is not a proof and burden lay upon plaintiff to prove facts and averments made in its plaint even if there is no written statement filed by defendants to ....
The court emphasized the necessity of mutual consent and the consideration of subsequent developments in divorce proceedings under the Hindu Marriage Act.
FRAUD VITIATES EVERYTHING AND ANY BENEFIT OR ADVANTAGE ACQUIRED BY ANY PARTY THROUGH FRAUDULENT ACTS CANNOT BE ALLOWED TO BE RETAINED BY SUCH PARTY.
Consent decrees based on family settlements cannot be challenged on procedural grounds but only on proven fraud.
Point of law : Applicants have been able to make out more than a prima facie case for grant of leave to appeal. The applicants could be said to be prima facie prejudicially affected by the consent de....
The discretionary nature of Order 8 Rule 1 of C.P.C. and the need for its reasonable exercise to advance justice.
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