Point of Law : Orders relating to custody of wards even when based on consent are liable to be varied by Court, if welfare of wards demands variation."

JUDGMENT :

NARENDRA KUMAR JOHARI, J.

1. First Appeal No. 104 of 2017 (Deepa Bajpai Vs. Dr. Ashish Mishra) under Section 19 (1) of the Family Courts Act, 1984 has been filed against judgment and decree dated 15.05.2017, passed by Principal Judge, Family Court, Lucknow in Regular Suit No.2799 of 2016 (Dr. Ashish Mishra Vs. Deepa Bajpai). First Appeal No. 108 of 2017 (Deepa Bajpai Vs. Dr. Ashish Mishra) has been filed against the order dated 10.07.2017, passed by Principal Judge, Family Court, Lucknow in Misc. Case No.Nil/2017, by which the application filed by the appellant for recall of the judgment/decree dated 15.05.2017 was rejected.

2. Since the facts and issue in both the appeals are similar, parties are same, therefore, both the appeals are being decided by the common judgment.

3. The brief facts of the case as argued before us are that the appellant Deepa Bajpai got married with respondent Dr. Ashish Mishra on 29.01.2015 at Lucknow observing Hindu rites and rituals. In the marriage, sufficient dowry including motor car and jewelry were given by the parents of the appellant but respondent and his family members were not satisfied by the dowry given and were continuously rebuking and demanding additional dowry. The mother of appellant was suffering from cancer and her father was working on the post of Assistant Accounts Officer in Defence Accounts department who performed her marriage by taking loan, that is why the parents of the appellant were not in a position to fulfill the demand of additional dowry, consequently, the in-laws of the appellant started torturing her.

4. The appellant was performing her duties as wife of respondent and never left his company. On 11.02.2016, appellant gave birth to a female child but the in-laws were not happy, as the appellant gave birth to a girl. The daughter of the appellant was not a normal child, as she was having only one Kidney in her body and her treatment was continuing from the hospital SGPGIMS, Lucknow. Since the demand of additional dowry could not be fulfilled, hence the in-laws of appellant were continuously torturing and behaving badly with her. They were intending to remarry the respondent in greed of money and were forcing the appellant to take divorce but the appellant was not ready. Without the consent of appellant, the respondent prepared the papers for divorce on the basis of mutual consent. On 20.10.2016, the sister-in-law of appellant snatched her daughter from the lap of appellant and by giving threat of her life they forced the appellant to sign the papers of divorce petition in Court. Appellant appeared before the Court but due to threat to the life of her minor daughter, she could not speak a single word before the Court concerned. She had never signed any affidavit before oath commissioner. The divorce petition was instituted on 20.10.2016 and the next date, after six months, was fixed as 13.05.2017. On 13.05.2017, the next date given by the Court was 15.05.2017. On 15.05.2017 appellant along with respondent appeared before the Family Court and she was again forced to sign on some papers already prepared.

5. The appellant was living in her matrimonial home from 30.1.2015 till 10.06.2017. On 10.06.2017, the family members of the in-laws expelled and turned her out from her matrimonial home on the pretext that the decree for her divorce had been passed. Infact her in-laws had threatened appellant for the life of her minor daughter and she was compelled to sign the pleading and affidavit with false contention. The in-laws of the appellant have also committed offence by rebuking and torturing her in connection with demand of additional dowry. The divorce petition under Section 13-B of the Hindu Marriage Act,1955 has been filed in the Court with false contentions. It has wrongly been mentioned in the divorce petition that the parties have been living separately since 10.09.2015. Hence, a fraud has been committed with the appellant as well as with the court concerned. Acc