Anshu Malhotra v. Mukesh Malhotra

Order dated 19.11.2019: "Fresh petition received by assignment. It be checked and registered.

This is a petition of second motion for seeking divorce by mutual consent u/s 13-B (2) of HMA. The certified copies of the 1st motion and MOU has already been filed. An application for waiver of cooling period of 6 months already moved which is allowed in view of the facts and circumstances mentioned in the application. The joint statement of both the petitioners is recorded. Today, petitioner no.1 has given two DDs of Rs.27,17,000/- to the petitioner no.2. Vide separate order, this petition is allowed and the marriage taken place between the parties on

30.01.2005 is ordered to be dissolved with effect from today. Decree be drawn accordingly and copy of the same be given to both the parties. File be consigned to record room." Detailed judgment dated 19.11.2019:

"1. This is a petition under Section 13-B (2) of the Hindu Marriage Act for dissolution of marriage by mutual consent filed by above mentioned parties being husband and wife. The certified copies of the first motion proceedings including statement, order of the court and MOU deed dated 27.08.2019 are placed on record which reflect that parties have fixed certain terms and conditions of compromise.

¶2The certified copies reveals that first motion under Section 13-B (1) of the Hindu Marriage Act has already been allowed by this court on 26.09.2019. Today, petitioner no.1 has given Rs.27,17,000/- through two DDs to petitioner no.2 in terms of MOU deed

against all her claims of maintenance, alimony and Istridhan etc.

¶3The joint statement of the parties was recorded who are identified by their respective counsel and their identity is also ascertained from the photographs pasted on the petition. I have also compared the signatures of the parties on their joint statement with the signatures appearing on the petition and found both are same. Thus, there is no dispute of any identity of the parties. An application for waiver of cooling period of six months already moved which is allowed in view of the facts and circumstances mentioned in the application.

¶4The record and statement of the parties point out that they are Hindu by religion and their marriage took place on 30.01.2005 as per Hindu rites and ceremonies beyond the jurisdiction of this court but both the petitioners resided within the jurisdiction of this court after marriage till their separation. The marriage could not be continued and they started residing separately since June, 2017.

¶5Both the parties have clearly stated that they are not interested for any patch up and there is no hope for the same. The marriage between the parties is broken down irretrievably and they cannot live together any more.

¶6Keeping in view the facts and circumstances of the case, especially that due to temperamental differences and attitudes, parties are not living together for the last more than 2 years and have already settled their claims full and final. Since, there is no hope for saving of the marriage in any situation so the present

petition u/s 13-B (2) of HMA is allowed and the marriage between petition Sh. Mukesh Malhotra and Smt. Anshu Malhotra taken place on 30.01.2005 is ordered to be dissolved with effect from today through a decree of divorce by mutual consent. Decree sheet be prepared accordingly. File be consigned to Record Room."

¶15The statements recorded of the parties by the Family Court was as under: Statement recorded on 19.11.2019 at second motion "HMA No.1043/19

19.11.2019 Second Motion Joint statement u/s 13-B (2) HMA of Sh. Mukesh Malhotra (aged about 43 years) S/o Sh. Gulshan Malhotra, R/o H.No.1/3223, Krishna Marg, Ram Nagar Extension, Shahdara, Delhi-32. AND Smt. Anshu Malhotra (aged about 35 years) W/o Sh. Gulshan Malhotra, D/o Late Sh. Brijesh @ Rakesh Chadha, R/o H.No.G-23, UGF-2, Keshav Kun, Kailash Puram, Ghaziabad, U.P. On SA We both are Hindu by religion and our marriage took place on 30.01.2005 at Mukherjee Nagar, Delhi as per Hindu rites and ceremonies. We had applied for divorce by mutual consent through first motion petition which was allowed by this court vide order dated

26.09.2019. Certified copy of the proceedings of the first motion including statements, order of the court, MOU deed dated

27.08.2019 are annexed as Ex.P1 (collectively). We have also placed on record marriage card, copy of marriage photographs, identity documents also which were already exhibited during first motion proceedings. We are residing separately since June, 2017 due to temperamental difference and have not cohabited after the decision of the first motion. The MOU deed executed on 27.08.2019 between us is contained terms and conditions which is already exhibited during the first motion proceedings. We have two children Harshita @ Ananya @ Ridhi (DOB 09.01.2006) and Aarna @ Mithu (DOB

24.09.2011) out of the said wedlock, who shall remain in the care and custody of petitioner no.2 and petitioner no.1 shall have no visitation rights. We further declare that the marriage between us is irretrievably broken down and we have decided not to live together anymore. Various efforts were made by the relatives, friends and even by court for patch up but of no use. We further declare that there has been no inducement, threat or coercion by anybody and we are giving statement voluntarily. We further declare that there is no other proceedings pending in the court between us.

Today, I, Anshu Malhotra, petitioner no.2 has received two DDs for sum of Rs.27,17,000/- (i.e. Rs.26,00,000 through DD No.017849 dated 18.11.2019 drawn on HDFC Bank, Krishna Nagar branch, Delhi and Rs.1,17,000/- through DD No.712775 dated

13.11.2019 drawn on UCO Bank, Krishna Nagar branch, Delhi) in the name of Baby Ridhi Malhotra payable by my husband, petitioner no.1 according to the terms and conditions of MOU deed towards all claim of maintenance, alimony and Istridhan etc. pertaining to past, present or future for me and my both children. I have already withdrawn all the cases and complaints instituted by me, if any. I, Mukesh Malhotra, petitioner no.1 undertake that I will not have any visiting right qua the children and is giving no objection for custody with petitioner no.2. We are showing again our original identity documents. RO&AC Sd- (Signature & thumb impression of petitioner no.1) Identified By Sh.K.K.Sharma, Ld. Counsel for petitioner no.1. Sd- (Signature & thumb impression of petitioner no.2) Identified By Sh.Mohd. Danish, Ld. Counsel for petitioner no.2."

¶16The counsel for the appellant also has not shown any error in the aforesaid record and has not chosen to annex to this appeal the petition

under Section 13B(2) of the HMA on which the aforesaid statements were recorded and order/judgment made. Therefrom also adverse inference has to be drawn, that there is nothing therein, on the basis of which the Family Court should have refused to pass a decree for dissolution of marriage by mutual consent.

¶17On the contrary, the case of the appellant in the memorandum of appeal is, (i) that the parties were married on 30th January 2005 and a daughter was born to the parties on 9th January 2006 and another daughter was born on 24th September 2011; (ii) that everything was going well in the family of the parties till the second child was born; (iii) thereafter, the members of the family of the respondent started misbehaving with the appellant on the pretext that they wanted a male child, though the respondent had no grievance in this regard; (iv) owing to the said behavior of the family members, the appellant in the month of March 2016 started suffering from depression, mental and anxiety disorder; (v) the respondent who runs a medical shop, instead of taking his wife i.e. the appellant to hospital, started treating her with his own knowledge but when there was no sign of improvement, the respondent took the appellant first to a psychiatrist in Jain Hospital and when there was still no improvement, to the Neurology Clinic at Surajmal Vihar and thereafter to Sir Ganga Ram Hospital and to various other hospitals in Delhi; (vi) the appellant and the respondent were residing together in the matrimonial home till November 2019 without separation of a single day; (vii) the appellant underwent neck surgery on 17th July 2019 and during that time also, the respondent took care of the appellant and the children; (viii) thereafter also the hospital attendant visited

the appellant at her matrimonial home on several occasions; (ix) both the children were also studying in the same school till the academic year 2019-2020; (x) that the appellant and the respondent were never separated as recorded in the Memorandum of Settlement Deed signed by the parties; (xi) during the period when the appellant was not living a normal life and was not in a position to take any decision, she was fraudulently made to sign the Memorandum of Settlement Deed; and (xii) the appellant, after recovered from her illness in the month of February 2020, tried to meet the respondent and visit her matrimonial home, but was not allowed.

¶18The appellant, alongwith the appeal has filed her medical prescriptions including discharge slips from the hospitals to show that she was suffering as claimed and that on most occasions she was accompanied by her husband.

¶19However, the aforesaid grounds or any of the facts were not available before the Family Court, neither at the stage of petition under Section 13B(1) nor at the stage of the petition under Section 13B(2). Rather the petitions were accompanied with a Memorandum of Settlement dated 27th August, 2019 between the respondent and the appellant, recording that they had been residing separately since June 2017 and had decided to dissolve their marriage by filing a divorce petition through mutual consent and containing the terms and conditions with respect to alimony, guardianship, visitation rights, etc. In terms of the said Memorandum of Settlement, the respondent paid to the appellant Rs.54 lakhs, approximately half at the time of first motion of the petition for dissolution of marriage by mutual consent and the balance at the time of recording the statements of the parties at the

time of second motion. It is also worth mentioning that witness to the signatures of the appellant on the Memorandum of Settlement is Deepak Chaddha i.e. the brother of the appellant. It is nowhere pleaded that he was not a witness and no other reason given as to how and in what circumstances his signatures were obtained.

¶20The other High Courts in the judgments referred by us hereinabove, appeared to have held the appeal against a decree for divorce by mutual consent to be maintainable, guided by the reason of making available a remedy to a spouse there against, if such a decree could not have been passed on the material available on record or had been passed in violation of the procedure prescribed by law for passing thereof or if had been obtained by misrepresentation or fraud. However in none of the said judgments save the judgment of the Division Bench of the Gujarat High Court, we find any reference to the proviso to Rule 3 of Order 23 CPC and with respect whereto Supreme Court in Pushpa Devi Bhagat vs. Rajinder Singh (2006) 5 SCC 566 held as under: "17. The position that emerges from the amended provisions of Order 23, can be summed up thus:

(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.

(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1 Order 43.

(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.

(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23. Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by second defendant was not maintainable, having regard to the express bar contained in section 96 (3) of the Code."

¶21The aforesaid view has been reiterated in R. Rajanna Vs. S.R. Venkataswamy (2014) 15 SCC 471, Ved Pal (Dead) Through LRs Vs.

Prem Devi (Dead) Through LRs (2018) 9 SCC 496 and Triloki Nath Singh Vs. Anirudh Singh (Dead) Through LRs 2020 SCC OnLine SC 444. Mention though may also be made of Daljit Kaur Vs. Muktar Steels Private Limited (2013) 16 SCC 607, but which was a case where, before the court in which compromise was arrived at itself, while it was contention of one of the parties that compromise has been arrived at and of the other that there was no compromise; the court, on making inquiry found that there was a compromise and passed a decree in terms thereof. It was held that such a decree would not fall in the genre of a consent decree and appeal there against would be maintainable.

¶22As would immediately become obvious, the law with respect to consent decree is, that though appeal is not maintainable there against but the remedy for a eventuality of consent having been obtained forcefully or fraudulently or having been obtained by misrepresentation is, by applying to the same court. We do not find any reason why the said principle of law of general application should not follow qua decree of divorce by mutual consent when the grounds of appeal are on the basis of facts, which were not before the court which passed the consent decree. It is only the court which passed the consent decree which is capable of going into the said facts and if finds any prima facie merit therein, make inquiry by recording evidence with respect thereto and to thereafter take a final decision. Against such an order, an appeal may lie. We however do not deem it necessary to give a final opinion in this regard. However when the facts on which setting aside of a decree for divorce by mutual consent are pleaded in the appeal for the first time, it is not in the domain of the appellate court to enter into the

inquiry into the said facts and if the same is done, would also deprive the parties of an important right of appeal, by converting the appellate court into a fact finding court.

¶23We therefore do not find the appeal to be maintainable and dismiss the same with liberty to the appellant to take steps in accordance with law, if entitled thereto.

RAJIV SAHAI ENDLAW, J.

ASHA MENON, J. JUNE 03, 2020 pkb

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd June, 2020 + MAT.APP. (F.C.) 86/2020 ANSHU MALHOTRA .....Appellant Through: Mr. Amar Nath, Advocate versus MUKESH MALHOTRA .....Respondent Through: None CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MS. JUSTICE ASHA MENON % [VIA VIDEO CONFERENCING] JUSTICE RAJIV SAHAI ENDLAW CM Nos. 11774/2020 & 11775/2020 (both for exemption) 1. Allowed, subject to just exceptions and as per extant rules. 2. The applications are disposed of. MAT.APP. (F.C.) 86/2020 & CM No.11776/2020 (for condonation of delay of 25 days in filing the appeal) 3. This appeal under Section 28 of the Hindu Marriage Act, 1955 (HMA) read with Section 19 of the Family Courts Act, 1984 impugns the order and decree dated 19th November, 2019 of the Judge, Family Court, Shahdra District, of dissolution of marriage of the appellant with the respondent under Section 13B of the HMA. 4. It is the contention of the appellant that the said order and decree is vitiated inasmuch as the consent of the appellant to dissolution of her marriage with the respondent was obtained during the illness of the appellant and is thus not of the own volition of the appellant and in fact there was no consent of the appellant or mutual consent for dissolution of marriage with the respondent. It is further contended that the parties, before filing the petition under Section 13B(1) of the HMA, were not even living separately for the statutory mandatory period of one year. 5. The appeal being against a decree of dissolution of marriage by mutual consent, we have straightaway enquired from the counsel for the appellant, how the appeal is maintainable inasmuch as an appeal against a consent decree is not available in law. Attention in this regard is drawn to Section 96(3) of the Code of Civil Procedure, 1908 (CPC) providing that no appeal shall lie from a decree passed by the court with the consent of the parties. 6. The counsel for the appellant states that in Krishna Khetarpal Vs. Satish Lal AIR 1987 P&H 191 and Charanjit Singh Vs. Neelam Maan AIR 2006 P&H 201, it has been held that an appeal under Section 28 of the HMA is maintainable against a decree of dissolution of marriage by mutual consent. 7. We have however drawn attention of counsel for the appellant to Section 19(2) of the Family Courts Act, which bars any appeal from a decree or order passed by the Family Court with the consent of the parties, and enquired, whether not the appeal is barred by the said provision. We have further enquired, whether the judgments aforesaid of the Punjab and Haryana High Court have dealt with the said provision of the Family Courts Act. 8. The counsel for the appellant states that he has filed this appeal without studying the full text of the judgments of the Punjab and Haryana High Court aforesaid and is thus unable to state whether Section 19(2) of the Family Courts Act is dealt with therein or not. He however states that from the headnotes available with him it appears that Section 96 was noticed in Krishna Khetrapal supra. 9. We have perused the judgments cited by the counsel for the appellants. As far as Krishna Khetrapal supra is concerned, the Division Bench of the P&H High Court therein was answering a reference for determination of the question, whether an appeal under Section 28 of the HMA is competent against a consent decree in the face of provisions of Section 96(3) of the CPC. It was held, (i) a right of appeal is creature of a statute and is a substantive right; (ii) section 28(1) of the HMA provides the right of appeal against all decrees made by the court in any proceedings under the Act – these decrees may be consent decrees or otherwise; (iii) decree of divorce by mutual consent under Section 13B is also appealable under Section 28 – the scheme of the HMA is not averse to passing of consent decrees (considerations under Section 23 apart) and the appeal against the said decree is maintainable by either party, as a ma