JUDGMENT :- This is an appeal by the defendant-appellant arising out of the following facts:

The plaintiff-respondent filed a petition under Sections 10 and 13 of the Hindu Marriage Act for dissolution of marriage and a decree for divorce. The parties were married according to Hindu rites on 1-5-1962. The plaintiff contended that the marriage was solemnised at Ujhani District Budaun. He also contended that for some time the appellant lived with him and then went to her father's house. In spite of the plaintiff's attempt, she did not return. It was alleged that the defendant-appellant was a woman of loose morals and there have been threats on her behalf to kill the plaintiff.

2. The petition was opposed by the appellant and inter alia it was pleaded that the marriage took place at village Kalva Bhoj District Shahjahanpur and the Budaun Court had no jurisdiction to try the suit.

3. The trial Court held that the marriage took place at Kalva Bhoj District Shahjahanpur and the Budaun Court had no jurisdiction to try the petition. The petition was then ordered to be returned for presentation to the proper court. It was against this decree that the plaintiff-respondent filed an appeal. In the lower appellate Court, the parties entered into a compromise on 23-10-1970. It was verified by the plaintiff-respondent and the counsel for the defendant-appellant. The lower appellate Court then passed a decree on the basis of the compromise and ordered that the compromise shall form part of the decree.

4. The defendant-appellant has filed this appeal. The main contention of the learned counsel for the defendant-appellant was that in a suit under Section 10 or 13 of the Hindu Marriage Act, no decree could be passed on the basis of the compromise or consent and therefore the decree passed by the lower appellate Court on the basis of the compromise was without jurisdiction and, as such, it should be set aside. The learned counsel for the respondent contended that under Section 96(3), C.P.C., no appeal lies against a consent decree and therefore the second appeal was incompetent. His argument was that the Hindu Marriage Act provided a right of appeal under Section 28 but the procedure had to be followed as laid down in the Code of Civil Procedure and as the decree was passed on a compromise and as it was a consent decree, therefore, this decree was not appealable. I have perused Section 96(3), C.P.C. The relevant clause reads as below:

"No appeal shall lie from a decree passed by the court with the consent of parties."

5. This provision applies only to such cases where a decree could be passed on the basis of consent and would not apply to cases where no decree could be passed on the basis of consent. The reason for the same is quite obvious. Once the parties came to terms and consented to a decree, they cannot be permitted to go behind the consent given by them and come in appeal to challenge the decree. In the instant case, they were not competent to come in appeal for dissolution of the marriage. The suit for dissolution of marriage under the Hindu Marriage Act can be filed on the grounds mentioned in Sections 10 and 13 of the Act. No decree for dissolution of marriage could be passed beyond the grounds mentioned in these sections. The principle that a decree for dissolution of marriage cannot be passed by consent is based on certain good principles. There might be a case when the grounds mentioned under Sections 10 and 13 are not made out but for their convenience's sake, the

parties may agree to get the marriage dissolved. This is what the Act does not contemplate and therefore a decree for dissolution of marriage can be passed only on the grounds mentioned in Sections 10 and 13 of the Act. A perusal of the compromise would go to show that there was nothing in it to show that the grounds mentioned in Sections 10 and 13 were made out. All that was mentioned in the compromise was that it was not a collusive compromise. Thus the decree passed on the ba

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