An appeal against a consent decree of divorce by mutual consent is not maintainable under Section 28 of the Hindu Marriage Act due to the prohibition of appeal in Section 96(3) of CPC; only remedy is to approach the court that issued the decree.

JUDGMENT :

Dinesh Kumar Paliwal, J.

This appeal under Section 28 of HINDU MARRIAGE ACT , 1955 (hereinafter referred to as “HMA”) has been filed by the appellant challenging the impugned judgment and decree dated 01.05.2023 passed by the First District Judge, Kotma, Anuppur (M.P.) in RCSHM No.87/2022 (Smt. Aditi Chakravarty Vs. Teevan Prasad Prajapati) whereby a decree of dissolution of marriage of the appellant with the respondent under Section 13-B(2) of HMA has been passed.

2. In short, the facts giving rise to the present appeal are that the marriage between the appellant and respondent was solemnized on 13.02.2019 according to Hindu rites and customs. They lived together as husband and wife and the marriage was consummated. The son Adhyan Prajapati was born on 20.01.2022. It is contended that when the appellant was carrying the pregnancy, respondent/husband deserted her and since 28.04.2021 she is living separately. On account of harassment, torture and humiliation by the respondent, appellant became mentally unsound and started to take treatment from Neuro Psychiatrist Dr. Sanjay Mishra since 03.10.2022. She was unable to understand her good and bad. It is further contended that on 24.11.2022 respondent beat her and apologized for his behaviour and asked her to go along with him to the Court to clear all the differences and also assured her to give Rs.5 Lac and took her to the Court. It is further contended that in Kotma Court he took the signature of the appellant on the joint application under Section 13-B(2) of HMA and presented the same before the Court without the consent of the appellant, on 01.05.2023 consent decree was passed. Appellant was suffering from mental illness and consent decree has been obtained by playing fraud with her by the respondent. It is also contended that the first motion took place on 25.11.2022 and statements were recorded and second time statement was recorded on 26.04.2023 and judgment was passed on 01.05.2023 as such judgment has been passed before expiration of the 6 months, therefore, the decree passed on the basis of the consent requires to be set-aside.

3. Learned counsel for the appellant submits that the impugned decree of divorce was obtained by the respondent through fraudulent means when appellant was of unsound mind. In support of her contention she has filed two medical prescriptions issued by Dr. Sanjay Mishra, consultant Neuro Psychiatrist, Goyal Market, Sirmour Square, Rewa (M.P.).

4. Learned counsel for the appellant further submits that the consent decree has been passed before expiry of 6 months, therefore, for the aforesaid reasons impugned decree of divorce by mutual consent under Section 13-B(2) of HMA be set-aside.

5. On the other hand learned counsel for the respondent by placing reliance on the provisions of Section 96 (3) of Code of CIVIL PROCEDURE CODE , 1908 has submitted that an appeal against the consent decree is not maintainable, because as per the aforesaid provisions no appeal shall lie from a decree passed by the Court with the consent of parties.

6. It is further contended that the joint application was filed by the both the parties and their statements were recorded on 25.11.2022 on the date when the joint application was presented and matter was listed on 26.04.2023 almost after five months. On 26.04.2023 again statements of the appellant and respondent were recorded and when despite both counseling they refused to live together and sought divorce through mutual consent. The trial Court having no option, has passed the consent decree. It is further submitted that the factum of mental illness was never taken before the trial Court and same has been raised for the very first time before the appellate Court, therefore, same cannot be considered by the appellate Court as trial Court has no occasion to consider the same, therefore, learned counsel prays for dismissal of the case.

7. We have heard learned counsel for the parties and perused the record.

8. The follow