An appeal against a consent decree under Section 13-B of the Hindu Marriage Act, 1955 is maintainable under Section 28 of the Act, and the court may set aside a divorce decree if the parties are living together.

JUDGMENT

Ritu Bahri, J. (Oral). - The present appeal has been filed for setting aside judgment and decree dated 11.02.2020 passed by the Family Court, Hoshiarpur, Camp Court Dasuya whereby divorce was granted under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act, 1955').

2. The marriage between the parties was solemnized on 26.03.2013 according to Sikh rites. Out of the wedlock, one male child namely Aaishveer Singh was born. A petition under Section 13-B of the Act, 1955 for dissolution of marriage was filed before the Family Court, Hoshiarpur, Camp Court Dasuya on 05.02.2019 and the same was allowed vide judgment and decree dated 11.02.2020. However, with the intervention of friends and well wishers and in the interest of their son, the parties have started to live together. They are present in Court today and gave their Aadhar Cards, copies of which are taken on record. On a specific query put to them, they submitted that they are living together as husband and wife alongwith their son.

3. This Court in the case of Jyoti V/s. Neeraj Kumar Saini 2019 (1) R.C.R. (Civil) 748 has observed in para 5 as under:-

'5. In this regard, learned counsel for the appellants has referred to a judgment of the division bench of this Court rendered in the case of Krishna Khetarpal, Headmistress, Government Girls High School, Bhuna, Tehsil Fatehabad, District Hisar v. Satish Lal; 1986 (2) PLR 608 in which the same issue had arisen and it has been decided that the appeal against the consent decree passed under Section 13B is appealable under Section 28 of the Act and Sub Section 3 of Section 96 of the CPC has no bar. Since, this issue is no more res integra as already been decided by this Court, therefore, we have entertained the appeal."

4. While referring to the judgment in Krishna Khetarpal's case (supra), the Division Bench had examined this issue in detail and held that under Section 28 of the Act, an appeal was maintainable against the consent decree and divorce under Section 13-B of the Act by either party as a matter of right. In para 5 of the said judgment, the Division Bench has observed as under:-

'An appeal against the decree of divorce by mutual consent distinctly is not merely on consent of the parties, for the matrimonial Court is involved in decision making so that it accords not only with provisions of Section 13B of the Act but also Section 23 of the Act. In sub-section 13B of the Act, a join petition by the spouses can be presented to the District Court on the ground that they have been living separately for a period of one year or more before the presentation of the petition and that they have not been able to live together and further that they have mutually agreed that the marriage should be dissolved. The petition then lies in hibernation for six months and under sub-section (2) both the parties have to activate it on the motion to the Court. It is then that the Court enters upon an enquiry into the facts where the marriage has been solemnized and whether the averments in the petition are true and further there are no impediments in the way as conceived of in Section 23 and in particular of sub-section (1)(bb) that such consent has not been obtained by force, fraud or undue influence. Thus a decree for divorce by mutual consent is not based merely on mutuality of the consenting parties but the court's involvement in decision making is inextricably a part of the decree. And since the possibility of an error, legal or factual, entering in the decision making cannot be ruled out, an appeal under Section 28 of the Act has advisedly been provided. Besides, Section 12 of the said Act says that subject to other provisions contained in the said Act and to such rules and the High Court may make in this behalf as proceedings under the said Act shall be regulated, as far as may be, by the Civil Procedure Code, 1908. Thus the proceedings in the appeal are to be regulated as far as may be, by the Civil Proc