The bar on appeal under Section 19 (2) of the Family Courts Act, 1984 does not apply if the judgment/decree of compromise is vitiated by fraud, collusion, coercion, and misrepresentation. Additionally, a remedy is available under Section 151 CPC for recall of the judgment/decree.

RAVI RANJAN, J.

1. At the time of hearing of this case, a question has arisen as to whether the appeal would be maintainable in view of the bar provided by the statute for entertaining of such appeal under Section 19 (2) of the Family Courts Act, 1984 (hereinafter in short referred to as the “Act”)? The aforesaid issue has been raised on behalf of the respondent.

2. Following facts are necessary to be noted for better appreciation:-

3. The marriage between the parties was solemnized in the year 2009. It appears that a petition under Section 13 B of the Hindu Marriage Act was filed by the parties for grant of divorce with mutual consent which was effectually granted by judgment and order dated 03.06.2016 passed in Matrimonial Case No.166 of 2015.

4. The appellant’s case is that she was never asked by the Court on any of the occasions whether she was willing for any decree of divorce. A fraudulent affidavit was filed by the respondent and the decree has also been obtained by playing fraud, collusion, coercion and misrepresentation upon her. Now the question would be as to whether the appeal would be maintainable in view of the bar created under Section 19 (2) of the Act. For better appreciation the aforesaid provision is incorporated as under:

19 (1). xxxxxxxxxxx

(2). No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties.

Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991.

(3). xxxxxxxxx

(4). xxxxxxxxx

5. From bare perusal of the aforesaid, it appears that the appeal would not be maintainable but the question is as to whether, if the judgment has been procured by one of the parties by playing fraud, collusion, coercion and misrepresentation, still the bar created by Sub-section (2) would operate?

6. The pari materia provision is there under Section 96 (3) of the Code of Civil Procedure (hereinafter in short referred to as the “CPC”), which is also extracted as under for better appreciation:

96 (3) No appeal shall lie from a decree passed by the Court with the consent of parties.

7. However, when issue arose as to whether in case of claim of one of the parties that the decree of compromise has been obtained by playing fraud, collusion, coercion and misrepresentation, the appeal would be available or not? The Hon’ble Apex Court in Banwari Lal versus Chando Devi (Smt) (Through LRs.) rendered in (1993) 1 Supreme Court Cases 581 has answered the issue in affirmative holding that the appeal would be available under 96 (1) of the CPC even though such bar is provided under Section 96 (3) of the CPC. This answer was given after consideration that earlier there was a provision for challenging such decree of compromise under Order 43, Rule l (m) of the CPC but later on that was omitted by the Legislature. However, while doing that, Rule 1-A(2) was inserted after Order 43 Rule 1 which provides as follows:

“1-A. Right to challenge non-appealable orders in appeal against decree.- (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree contend that such order should not have been made and the judgment should not have been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.”

8. After considering the entire provisions of Order 23 CPC in particular Rule 3 thereof regarding compromise of suit and also after noticing the explanation thereof that an agreement for compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the m