Consent Divorce Decree Appealable If Consent Is Disputed And In The Absence Of Inquiry By Court: Allahabad HC [Read Order]
The Allahabad High Court has held that Divorce decree by consent is also appealable if the consent is disputed and is alleged to be not free & bonafide in the absence of inquiry by court.
In this case, the wife had approached the high court contending that the consent decree was obtained by fraud by getting her signatures on the petition by coercion.
Referring to provisions and judgment of Bombay High Court, the bench comprising of Justice Pankaj Mithal and Justice Rajiv Joshi observed that it is the solemn duty of the court to hold an inquiry in this respect before proceeding to pass a decree of divorce. “This has not been done by the court below in the present case and it has recorded its satisfaction without conducting any such inquiry,” the bench said.
The bench also observed that Section 28 of the Hindu Marriage Act, 1955 which permitted filing of appeal against the decrees and orders passed under the Act placed no rider on filing appeal even against a consent decree. “It permitted appeal against all decrees made by the Court in any proceedings under the Act, except those relating to award of costs. Thus, by necessary implication, even consent or compromise decree, if passed under the Hindu Marriage Act, 1955 were open to appeal,” it added.
Admitting the appeal, the bench said: “We are of the opinion that the appeal even against a consent decree under such facts and circumstances of the case, where the consent itself is disputed and no inquiry has been conducted by the court below is maintainable, subject to objection on appearance by the other side.”Read the Order Here