An appeal under the Family Courts Act is not maintainable when a divorce decree is based on mutual consent as stipulated by Section 19(2).

JUDGMENT :

Sanjay K. Agrawal, J.

1. Heard on I.A.No.1/2024 for condonation of delay in filing the instant appeal.

2. On due consideration and having heard learned counsel for the parties, I.A.No.1/2024 is allowed and delay in filing the appeal is hereby condoned.

3. The appellant herein has preferred this appeal under Section 19(1) of the Family Courts Act, 1984 calling in question legality, validity and correctness of judgment & decree dated 22-9-2023 passed by the 2^nd Additional Principal Judge, Family Court, Bilaspur in Civil Suit No.735-A/2023, by which the Family Court has dissolved the marriage under Section 13B of the Hindu Marriage Act, 1955 on the basis of divorce taken on mutual consent.

4. When the matter is taken-up for hearing, Mr. Gaurav Singhal, learned counsel appearing on behalf of the respondent herein, would submit that the appeal is not maintainable in view of the bar contained in Section 19(2) of the Family Courts Act, 1984, as Section 19(2) clearly bars appeal from a decree or order passed by the Family Court with the consent of the parties, since in the instant case, both the parties have filed application and both have signed the application for decree of divorce on mutual consent.

5. Opposing the aforesaid submission, Mr. Abdul Moin Khan, learned counsel appearing on behalf of the appellant herein, would submit that according to paragraph 2 of the impugned judgment passed by the Family Court, the respondent herein was obliged to allow the appellant herein to meet and call their son through video conferencing that is not being allowed.

6. We have heard learned counsel for the parties on the question of maintainability of this appeal and considered their rival submissions made herein-above and also gone through the record with utmost circumspection.

7. Admittedly, the application for divorce was filed under Section 13B of the Hindu Marriage Act, 1955 i.e. divorce by mutual consent, which was granted by the Family Court on 22-9-2023.

8. However, for the sake of convenience, Section 19(2) of the Family Courts Act, 1984 is reproduced herein-below, which states as under: -

“19. Appeal.—(1) xxx xxx xxx

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):

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.”

9. A careful perusal of Section 19(2) of the Family Courts Act, 1984 would show that it starts with, no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties and in the instant case, it is not in dispute that decree of divorce was passed by the Family Court on the basis of mutual consent under Section 13B of the Hindu Marriage Act, 1955, therefore, the appeal would not be maintainable, as both the parties have appeared before the Family Court and signed the papers. It is not the case of the appellant herein that decree was obtained by fraud except pleading that terms of the judgment as contained in paragraph 2 is not being complied with by the respondent herein. As such, the appeal is held to be not maintainable and the appeal deserves to be dismissed accordingly. However, the appellant herein is at liberty to make an application before the Family Court for compliance of paragraph 2 of the judgment impugned.

10. With the aforesaid observation, the appeal is dismissed as not maintainable subject to the aforesaid libert