A matrimonial court can dissolve a marriage by mutual consent based on a compromise entered into during the pendency of the divorce petition without strictly following the procedure prescribed by Section 13B(2) of the Hindu Marriage Act, 1955, provided that it satisfies itself of the requirements of Section 23(1)(c) and Section 23(1)(bb) of the Act.

MADAN MOHAN PUNCHHI, J.

1. Two significant questions of law, mentioned hereafter, have been referred by S.S. Kang, J. for determination by a larger Bench and under orders of Hon ble the Chief Justice have been placed before us, for the purpose. They are :

(1) Whether an appeal under S.28 of the Hindu Marriage Act ("the Act" for short) is competent against a consent decree in the face of provisions of Sub-S. (3) of S.96 of the Civil P.C.; and

(2) Whether a Matrimonial Court can dissolve a marriage by a decree of divorce between two Hindus on the basis of a compromise entered into between the parties during the pendency of the divorce petition without following the procedure prescribed by S.13B(2) and without satisfying the requirements of S.23(1)(c) of the Act ?"

These have arisen in a narrow sphere.

2 The appellant in the present FAO is the wife and the respondent is her husband. The husband on 26th July, 1980, filed a petition for divorce under S.13 of the Hindu Marriage Act, 1955 (for short, the Act) on various grounds. During the pendency of the petition on 29th May, 1984, a compromise deed was placed before the Court trying the cause. According to the terms of the compromise a decree for divorce was to be granted in favour of the husband it forming part of the decree-sheet. The learned Judge recorded the statements of the parties and relying on two decisions of this Court in Devinder Singh Talwar V/s. Loveleen Kaur, 1982 Marriage LJ 94, and Jagjit Singh V/s. Gunwant Kaur, 1978 Hindu LR 696, granted a decree of divorce in favour of the husband. The wife has appealed to this Court. At her instance, the second question has cropped up and the first question at the instance of the husband.

3. So far as the first question is concerned, nothing much has been said to the maintainability of the appeal. Yet since the question has been referred we need examine it. It is well known that a right of appeal is a creature of the statute. It is a substantive right and not part of procedure. Section 28(1) of the Act provides a right of appeal. It says : All decrees made by the court in any proceeding under the Act shall, subject to the provisions of Sub-Sec. (3) be appealable as decree of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. It is significant that all original decrees made by the Court under the Act are appealable. These decrees may be consent decrees or otherwise. Another significant feature in the Act is the provision of S.13B whereunder divorce by mutual consent can be obtained. Decree of divorce by mutual consent is also appealable under S.28 of the Act. So the scheme of the Act is not averse to passing of consent decrees (considerations under S.23 apart) and the appeal against such decree is maintainable by either party as of right.

4. In contrast, the appeal under S.96 of the Civil P.C. is on a different footing, for Sub-Sec. (3) thereof debars an appeal from a decree passed by the Court with the consent of the parties. The bar to an appeal against consent decree is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forgo their right of appeal, by any lawful agreement or compromise or even by conduct. See in this connection K.C. Dora V/s. Guntreddi Annamanaidu, (1974) 1 SCC 567. Here the Court plays no role of justicing. The parties do justice to themselves by consent and the Court puts a seal thereon as if the decision is of its own. It is for this reason that the Legislature in its wisdom considered it advisable not to provide a re-hearing of the matter, for else appeal is in our processual law nothing but that.

5. An appeal against the decree of divorce by mutual consent distinctly is not merely on consent of the parties, for the matrimonial Court is in