Consent for divorce must continue until the decree is granted, failing which the decree may be set aside.

1. The present appeal is preferred by the appellant challenging the judgment and decree dated 06.01.2020 passed by the learned Principal Judge, Family Court, Raipur in Civil Suit No.664/2019 in between Tarun Dahire v. Smt. Sneha Dahire, whereby the application filed by the respondent husband under S.13 (B) of the Hindu Marriage Act, 1955 has been allowed.

2. The Office has raised objection that the present appeal is not maintainable for the reason that it is barred under S.19 (2) of the Family Court Act, 1984, as no appeal would lie from a decree or order passed by the Family Court with the consent of the parties.

3. The appearance of the respondent is already on record.

4. The facts of the case are that an application under S.13 (B) of the Hindu Marriage Act, 1955 was filed by the appellant wife and the respondent husband before the Family Court, Raipur with averment that they were married on 09.11.2011 and out of their wedlock, a child was born on 26.08.2013. It was further pleaded that after sometime of the marriage and birth of the child, both husband and wife could not adjust with each other and fell into the differences of compatibility and the opinion. Consequently, they started living separately for last 6 years. Thereafter, an application was filed by husband and wife claiming mutual divorce under S.13 - B of the . It was further contended that it was agreed that the child begotten to them would be in the custody of the mother, whereas the paternity right would be protected. The wife also denounced her right to claim maintenance. Under the aforesaid grounds, the divorce was claimed. The learned Family Court on 06.01.2020 passed the judgment and decree of divorce in Civil Suit No.564/2019, which is under challenge in this appeal.

5. Learned counsel for the appellant wife would submit that though the application was filed for divorce by mutual consent, but the consent of the appellant wife did not subsist on the date when the judgment and decree was passed. He referred to S.9 of the Family Courts Act, 1984 and would submit that S.9 casts duty upon the Family Court to make all efforts for settlement between the parties. In the instant case, initially though the consent of both the husband and the wife was recorded on 03.01.2020 and the case was fixed for 06.01.2020 for final order, but on 06.01.2020 again, the case was reopened and only the consent of the husband was recorded. Therefore, it would be against the spirit of S.9 of the and no decree can be passed subsequently.

6. Per contra, learned counsel for the respondent husband would submit that the consent of the parties was already recorded on 03.01.2020 and it was a mere formality on the subsequent date and the Court was not bound to record statement or consent of the parties once having recorded. Resultantly, based on the previous consent of the parties, which was recorded on 03.01.2020 itself, the decree of divorce was passed. Therefore, the instant appeal would not be tenable as per S.19 (2) of the Act, 1984, which bars an appeal in the event that consent decree is passed.

7. We have heard learned counsel for the parties at length and perused the records.

8. Perusal of the record would show that on 18.06.2019, a joint application was moved by the appellant wife and the respondent husband under S.13 (B) of the Hindu Marriage Act, 1955 for divorce by mutual consent. The learned Family Court proceeded for settlement, however, it failed. The order sheet dated 03.01.2020 records the appearance of both husband and wife. The order sheet purports that both husband and wife contended that they cannot live together, thereafter their statement was recorded and the case wa