IMPORTANT POINT
An appeal against a decree of divorce by mutual consent is not maintainable if the consent is claimed to be obtained through fraud or misrepresentation.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

ORDER IN CIVIL APPLCIATION (FOR CONDONATION OF DELAY) NO.1081 OF 2024

1. Heard learned advocate Mr.Veer Kankaria with Mr.Rajiv Rajpurohit, learned advocate for the applicant and Mr.P.P.Banaji, learned advocate for the respondent.

2. This appeal has been filed by the appellant, who was a party to an application filed under Section 13-B of the Hindu Marriage Act, 1955. She, along with the respondent herein, applied for divorce by mutual consent. Having applied for divorce by mutual consent by a joint application and the Family Court, having so granted the application vide its order dated 17.08.2023, the wife is in appeal challenging the judgment and decree of Family Court. There has been a delay of 96 days in filing the appeal.

3. While hearing the application for condonation of delay, we had requested learned counsels for the respective parties to address us on the issue whether an appeal, at all, will be maintainable against the judgment and decree passed by a Family Court on an application for divorce by mutual consent.

4. For the reasons assigned separately and considering the objections raised by the respondent, which he has filed on an affidavit to the civil application for condonation of delay, we condone the delay in filing the appeal.

ORDER IN FIRST APPEAL NO.4223 OF 2024

1. Since, we have heard the appeal on merits, we decided to dispose of the appeal today itself.

2. ADMIT. Learned advocate, Mr.P.P.Banaji waives service of notice of admission on behalf of the respondent.

3. This appeal under Section 19 of the Family Courts Act, 1984 (hereinafter referred to as “the Act, 1984’, has been filed by the appellant – Manisha Anand, challenging the judgment dated 17.08.2023, passed by Family Court No. 6, Ahmedabad, in Family Suit No. 1314 of 2023. The suit was filed by both the appellant - wife and respondent – husband under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act, 1955”), seeking divorce by mutual consent. By the order under challenge, the Family Judge, in the suit so filed jointly by the appellant and the respondent, passed decree of divorce dissolving the marriage of the parties as per the terms and conditions stated in the mutual consent petition.

4. The appellant – wife who was a party to the application, which was filed jointly with the respondent, has come before us challenging the judgment and decree of the Family Court on the ground that the judgment and decree of divorce passed by the Family Court is bad inasmuch as the judgment and decree is obtained by misrepresentation and fraud.

5. Learned advocate, Mr.Veer Kankaria with Mr.Rajiv Rajpurohit, learned advocate for the applicant would submit that the appellant was forced to sign the divorce petition, therefore, it is clearly evident that as a result of undue influence, the petition for mutual consent was signed. He would submit that she had no intention of undergoing separation. Stressed by the fact that her mother was not keeping well, she was compelled to sign the marriage dissolution petition under Section 13-B of the Act, 1955 and the divorce was hastily obtained.

6. Learned advocate for the appellant would submit that, having married in the year, 2004, the divorce petition was filed on 07.06.2023. The date of purported separation in the petition for mutual consent, as well as in the judgment and order, is shown as 15.01.2022. In fact, cognizance can be taken of the fact that, even post the petition so filed, both parties have stayed under one roof and gone out together, for which, he has pressed into service and relied on photographs before us. He would, therefore, suggest that apparently, when both were still staying together, there was no reason for the appellant to seek divorce by mutual consent by filing and being signatory to a joint petition before the Family Court.

7. Learned advocate for the appellant would submit that the appellant's mother died on 30.11.2023. She was