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BIREN VAISHNAV, MAULIK J. SHELAT
Manisha Anand – Appellant
Versus
Nilesh Anand – Respondent
JUDGMENT (ORAL)
Order in Civil Applciation (For Condonation of Delay) No.1081 of 2024
Biren Vaishnav, J.—Heard learned advocate Mr.Veer Kankaria with Mr. Rajiv Rajpurohit, learned advocate for the applicant and Mr. P.P. Banaji, learned advocate for the respondent.
2. This appeal has been filed by the appellant, who was a party to an application filed under Section 13-B of the Hindu Marriage Act, 1955. She, along with the respondent herein, applied for divorce by mutual consent. Having applied for divorce by mutual consent by a joint application and the Family Court, having so granted the application vide its order dated 17.08.2023, the wife is in appeal challenging the judgment and decree of Family Court. There has been a delay of 96 days in filing the appeal.
3. While hearing the application for condonation of delay, we had requested learned counsels for the respective parties to address us on the issue whether an appeal, at all, will be maintainable against the judgment and decree passed by a Family Court on an application for divorce by mutual consent.
4. For the reasons assigned separately and considering the objections raised by the respondent, which he has filed on an affidav
Divorce by mutual consent – No appeal would be maintainable against decree for divorce by mutual consent.
An appeal against a decree of divorce by mutual consent is not maintainable if the consent is claimed to be obtained through fraud or misrepresentation.
An appeal under the Family Courts Act is not maintainable when a divorce decree is based on mutual consent as stipulated by Section 19(2).
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."
Failure to provide a cogent explanation for delay in challenging a Decree of divorce by Mutual Consent may lead to the dismissal of the appeal.
The main legal point established in the judgment is that mutual consent for divorce must continue until the decree is passed, and the court must be satisfied about the existence of mutual consent bet....
Point of law: Requirement under Section 13B(2) of Hindu Marriage Act is the “motion of both parties”.
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 livi....
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