Can Mutual Divorce be Challenged

In the case of Deepa Bajpai v Dr. Ashish Mishra, it was maintained that the couple got married in the year 2015 as per the Hindu rites, the family of the husband received a car and jewelry as dowry. The wife pleaded before the court that the in-laws were demanding more dowry from her and the situation worsened when she gave birth to a girl child.

It was alleged that the family of the husband decided to get him married again for dowry, and her sister-in-law snatched her daughter and threatened her to sign the divorce paper (by mutual consent). She further claimed that she was forced to appear in the court, where divorce was granted in the year 2017.

Afterwards, she filed an application under Section 151 and under Order47 Rule 1 of CPC for cancellation and the recall of the judgment above. The plea was denied by the Family Court, and thus, the wife filed an appeal to the High Court. The main contention before the High Court was that the wife was threatened and forced to agree to divorce and thus, the divorce was not with mutual consent.

The Bench of Justices Atau Rahman Masoodi and Narendra Kumar Johari, noticed that the wife was unable to prove the above facts that she was coerced to sign the divorce papers. The question before the Court was that, “whether the judgment and decree which is based upon mutual consent under Section 13B of Hindu Marriage Act, 1995 can be challenged by way of  appeal/suit? 

It was held that, 

-The decree has been challenged by appellant under Section 19(1) of the Family Court’s Act, whereas Section 19(2) of the Act prohibits it.

– The Family Courts Act is a special Act, and thus filing an appeal under Order XLI Rule 1A of the CPC can not override it as per Section 20 of the Family Courts Act.

– Also under Order 23 Rule 3A of CPC, the decree can’t be challenged as suit also,

– The Court also observed the judgment provided by the Andhra Pradesh High Court in the case of K. Rajan Raju and Ors. vs Smt. P. Rangamma and others,2006, where it was held that on the grounds of fraud, misrepresentation or coercion an application to set aside the consent decree is maintainable before the same court which passed such an order. Thus, no different suit is required to be filed.

At Lead India, we provide a wide pool of experienced advocates dealing with the issues such as family law, divorce, domestic violence, custody issues, etc. Timely guidance and knowledge of the legal procedure could go a long way while dealing with the legal issues, which is offered here.