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.
The said judgment was delivered in the matter of Smt. Pooja Vs. Sh. Vijay Chaitanya (First Appeal No. 227 of 2018) decided on 06.04.2018. In the said 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.
The moot question, in the present case was whether an appeal would lie against a decree passed under Section 13-B of the Hindu Marriage Act, 1955 by mutual consent.
The Division Bench of the Allahabad High Court stated while relying on the judgments in the matter of Hitesh Bhatnagar Vs. Deepa Bhatnagar (2011) 5 SCC 234 and Smt. Sureshta Devi Vs. Om Prakash (1991) 2 SCC 25 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”.
It further stated that “Section 23(1)(bb) of the Hindu Marriage Act, 1955 also casts an obligation upon the courts in the matter of divorce by mutual consent to satisfy itself that the consent has not been obtained by force, fraud or undue influence. Thus, the Court is obliged to make requisite inquiry in the matter before proceeding to pass a decree of divorce by mutual consent”.
The Bench also observed and cleared out on the aspect 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.