FRAUD VITIATES EVERYTHING AND ANY BENEFIT OR ADVANTAGE ACQUIRED BY ANY PARTY THROUGH FRAUDULENT ACTS CANNOT BE ALLOWED TO BE RETAINED BY SUCH PARTY.

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the challenge is by the husband to the impugned order dated 22.7.2009 passed by the learned Additional District Judge thereby recalling the judgment and decree dated 22.4.2008 on the application moved by the respondent wife under Section 151 CPC.

2. Brief facts of the case as borne out from the respective pleadings of the parties are that the appellant husband and the respondent wife were married on 27th January, 2002 at Gurgaon according to Hindu rites and ceremonies and a child was born out of the wedlock of the parties on 24.1.2003. Thereafter, a petition for divorce by mutual consent was filed by both the parties under Section 13(B)(1) of the Hindu Marriage Act, 1955 and as per the averments made in the said petition the stand taken was that the parties had been living together as husband and wife after solemnization of their marriage at house bearing No. J-4/90B, DDA Flats Kalkaji, New Delhi; that both the parties last resided together as husband and wife at house No. 47, Second Floor, Rampuri, Kalkaji, New Delhi up to first week of April, 2007 and thereafter due to some temperamental differences the husband left the company of his wife and then started residing separately. It was also averred that efforts were made by the parents of the respective parties to persuade the parties for reconciliation, but the same failed and the marriage between the parties irretrievably broken down and hence, both the parties had mutually agreed to dissolve their marriage. It was averred that both the parties had amicably settled all their claims and disputes with regard to dowry, stridhan, maintenance-present, past & future and permanent alimony etc. in respect of wife, petitioner No.1 as also in respect of the minor child of the petitioners in her custody, for a total sum of Rs. 2 lakhs payable on the part of husband, petitioner No.2 to petitioner No. 1 as full and final settlement of all their claims. It was also averred that the custody of the child will remain with the mother upto the age of 8 years and thereafter her husband will be at liberty to take the child in his custody for better upbringing of the child. It was also averred that mutual consent of the parties was not obtained by force, fraud or undue influence and the said petition was not preferred by them in collusion with each other. The said petition was filed by both the parties through a common Advocate, namely, Ms. Ranjana Kaur and the petition was signed by both the parties besides being supported by their respective affidavits. Respective affidavits of the parties were duly identified by their common Advocate and the same were duly attested by the oath Commissioner. Along with the said petition, the parties placed on record their marriage card, photograph of the marriage, photocopy of the driving license of the wife, photocopy of the bank passbook of the husband, photocopy of the election card of the husband and the petition also carried separate photographs of both the husband and the wife. Along with the said petition, Power of Attorney was filed by the said common Advocate, Ms. Ranjna Kaur. The said Power of Attorney is shown to be carrying the signatures of both the parties. The said joint petition was taken up by the matrimonial Court on 9.4.2008 and the ordersheet of 9.4.2008 shows the presence of both the parties along with their counsel, Ms. Ranjana Kaur. The joint statement of both the parties was recorded by the Court on the same day and the matter was then adjourned for order on 17.4.2008 on which date the Court directed the presence of the wife, petitioner No. 1, to certify the encashment of the cheque, which was given to her by her husband, petitioner No. 2 at the time of recording of their joint statement. The matter was accordingly taken up by the Court on 17.4.2008 and after hearing the arguments of counsel for the parties, the Court allowed the said peti