The main legal point established in the judgment is the maintainability of an appeal against a decree of dissolution of marriage by mutual consent, and the applicability of the provisions of the Code of Civil Procedure and the Family Courts Act in determining the same.

JUDGMENT

Rajiv Sahai Endlaw, J. - Allowed, subject to just exceptions and as per extant rules.

2. The applications are disposed of.

MAT.APP. (F.C.) 86/2020 & CM No.11776/2020 (for condonation of delay of 25 days in filing the appeal)

3. This appeal under Section 28 of the Hindu Marriage Act, 1955 (HMA) read with Section 19 of the Family Courts Act, 1984 impugns the order and decree dated 19th November, 2019 of the Judge, Family Court, Shahdra District, of dissolution of marriage of the appellant with the respondent under Section 13B of the HMA.

4. It is the contention of the appellant that the said order and decree is vitiated inasmuch as the consent of the appellant to dissolution of her marriage with the respondent was obtained during the illness of the appellant and is thus not of the own volition of the appellant and in fact there was no consent of the appellant or mutual consent for dissolution of marriage with the respondent. It is further contended that the parties, before filing the petition under Section 13B(1) of the HMA, were not even living separately for the statutory mandatory period of one year.

5. The appeal being against a decree of dissolution of marriage by mutual consent, we have straightaway enquired from the counsel for the appellant, how the appeal is maintainable inasmuch as an appeal against a consent decree is not available in law. Attention in this regard is drawn to Section 96(3) of the Code of Civil Procedure, 1908 (CPC) providing that no appeal shall lie from a decree passed by the court with the consent of the parties.

6. The counsel for the appellant states that in Krishna Khetarpal Vs. Satish Lal, (1987) AIR(P&H) 191 and Charanjit Singh Vs. Neelam Maan, (2006) AIR(P&H) 201 , it has been held that an appeal under Section 28 of the HMA is maintainable against a decree of dissolution of marriage by mutual consent.

7. We have however drawn attention of counsel for the appellant to Section 19(2) of the Family Courts Act, which bars any appeal from a decree or order passed by the Family Court with the consent of the parties, and enquired, whether not the appeal is barred by the said provision. We have further enquired, whether the judgments aforesaid of the Punjab and Haryana High Court have dealt with the said provision of the Family Courts Act.

8. The counsel for the appellant states that he has filed this appeal without studying the full text of the judgments of the Punjab and Haryana High Court aforesaid and is thus unable to state whether Section 19(2) of the Family Courts Act is dealt with therein or not. He however states that from the headnotes available with him it appears that Section 96 was noticed in Krishna Khetrapal supra.

9. We have perused the judgments cited by the counsel for the appellants. As far as Krishna Khetrapal supra is concerned, the Division Bench of the P&H High Court therein was answering a reference for determination of the question, whether an appeal under Section 28 of the HMA is competent against a consent decree in the face of provisions of Section 96(3) of the CPC. It was held, (i) a right of appeal is creature of a statute and is a substantive right; (ii) section 28(1) of the HMA provides the right of appeal against all decrees made by the court in any proceedings under the Act these decrees may be consent decrees or otherwise; (iii) decree of divorce by mutual consent under Section 13B is also appealable under Section 28 the scheme of the HMA is not averse to passing of consent decrees (considerations under Section 23 apart) and the appeal against the said decree is maintainable by either party, as a matter of right; (iv) in contrast, the appeal under Section 96 of the CPC is on a different footing; (v) the bar to an appeal against a consent decree is based on the broad principle of estopple; (vi) in passing of consent decree under Order 23 CPC, the court play