Fraud vitiates court proceedings and can be a ground for setting aside a consent decree.

K.Kannan, J.

1. The appeal is at the instance of the wife challenging a decree of divorce granted in an application under Section 13-B of the Hindu Marriage Act. The impugned order alleges that the petition had been filed by both the husband and wife together and statement of parties were reported to have been recorded on 18.07.2009 and 22.01.2010. The order of the Court states that there was nothing on record to conclude that the consent of parties was on account of coercion, duress or allurement.

2. In the appeal filed by the wife, it is urged in the grounds that the husband along with his family members played a vicious fraud by asking her to signify consent for divorce on a representation that husband was serving in the Army and that it would be difficult for him to leave the job to go abroad. On the other hand, the wife had a good command over English and should go along with her brother-in-law Manna Singh as if they were a couple. She was made to believe that she was going through a paper divorce and after conducting a fake marriage between herself and her brother-in-law, they would settle abroad and then her husband would leave the job to go abroad and join her. The appellant felt befooled only when the respondent began acting as though the decree of divorce was good enough to get rid of her and whole drama had been enacted only to secure a divorce really and keep her outside the bonds of marriage. According to her even the petition for divorce disclosed that both the husband and wife were residing in the same house at the time when the petition was filed.

3. The averments made in the grounds of appeal are very serious and if they are proved, the decree of divorce that was granted by the Court would be liable to be set aside. The Section 96(3) of the Civil Procedure Code states that there shall be no appeal against a decree obtained on consent. If an application is filed under Section 13-B of the Hindu Marriage Act and a decree was subsequently passed, it must be normally taken as a consent decree and hence, an appeal under Section 96(3) would definitely be not maintainable. But if a claim of fraud is made, there are three options open: one, to apply to the same Court for recalling the order by setting out the grounds of fraud; two, an independent suit should have been possible to contend that the decree itself was obtained by fraud and hence the decree is not enforceable and still a third option Is by way of an appeal to contend that the decree is not a valid decree in the eye of law and it is vitiated. In Ravinder Singh v. Financial Commissioner, Cooperation, Punjab, 2008(7) S.C.C. 663, the Honble Supreme Court was considering the issue of maintainability of an appeal against an ex parte decree. The Honble Supreme Court held that a defendant in her suit had more than one remedy as regards setting aside an ex parte decree. He could have filed an application for setting aside the ex parte decree, filed a suit stating that service of notice was fraudulently suppressed or preferred an appeal, or filed an application for review.

4. In the ultimate analysis, provisions of appeal are method of giving an opportunity to aggrieved party to have the decision reappraised if sufficient grounds are made out. Fallibility in decision making could always exist and appeal is a device for a fresh perception. Fraud is an ante-thesis to justice. They cannot reside together. An act of fraud vitiates of Court proceedings. Normally when a fraud in a judicial proceeding is urged, the appropriate remedy for the party shall be only to approach the very same Court (see: Hamza Haji v. State of Kerala 2006(7) S.C.C. 416, K.D. Sharma v. Steel Authority of India 2008(12) S.C.C. 481 and Papaya Shastri v. Government of Andhra Pradesh, 2007(4) S.C.C. 221). I shall not allow a technicality to come in the way for the husband to urge that the petitioner could have applied to the very same court for setting aside the decree and could not have prefe