I slightly differ to the two views above mine + application of point of Law is "pan-India" based and does not exclude Delhi / Haryana / P & H only thus law applies to pan - India + after completely ignoring a time pass view which are not in consonance with what Hon'ble SC inked in tombstone in catena of its decisions in sofaras the salutary rule of settling dispute by compromise in pending litigation is contained in Order 23 Rule 3 of the Civil Procedure Code, (for short the Code). With the insertion of Rule 3A by the Central Act No. 104 of 1976, a bar has been created in filing of a suit to challenge a decree based on compromise on the ground that the compromise was not lawful. There was conflict of view in this behalf, which was sought to be set at rest by the insertion of the aforesaid proviso.
Even to settlements made before the Lokadalat’s binding force has been given by virtue of S. 21 (2) contained in Chap. VI of the Legal Services Authorities Act, 1987. In spite of the enactment, so far this law has not been enforced, but we do get the guidance that the law framers always intended that the settlements arrived at between the parties in Court are good and binding and have the legal force, and the matter can be reopened only on the grounds on which a contract can be reopened and not otherwise. The addition of Rule 3A to Order 23 of the Code has further added that even if it were to he shown that the compromise was unlawful, the suit would not lie. Therefore, unless a ground is established on which compromise or a contract can be avoided, the Courts will have no jurisdiction to reopen or go behind the compromise decrees merely on the basis that whether the facts stated in the plaint, which ultimately concluded by a compromise decree, were correct or not
This is more so because the facts stated in the plaint are admitted in the written statement. The defendant and his men and agent would be bound by the admission and would be debarred from going back. Sometimes claim is admitted by the defendant by making a statement on oath before Court. He cannot be allowed to go back from his statement. Some other times, written compromise duly signed by the parties is filed in Court in which claim of the plaintiff is admitted. Sometimes the written compromise provides that the plaintiff is the owner and the defendant has no right, title or interest therein. So under all the eventualities either the claim of the plaintiff stands admitted or title is created in him for the first time under the decree. Under these circumstances, Court will have no jurisdiction to reopen the consent or compromise decree except when fraud, coercion or misrepresentation in obtaining the consent or compromise, which resulted in the passing of the decree is pleaded and proved.
Apart from the above, there is an additional ground in favour of minors or persons of unsound mind, if they are able to prove that the next friend or the guardian who acted on their behalf was, negligent in conducting the proceedings then there lies a Appeal in a contested and or mutual consent decree matters.
Now I advert to the facts of the placed brief (three questions) before me.
Your Que. 1 - I am pretty confused as I am getting varied replies on this. Some people say that MCD once granted (irrespective of back date marriage fact) cannot be challenged.
In question 1 for the question of law it has been held that S. 28[1] of Hindu Marriage Act provides a right of Appeal and all original decrees made by the Trial Court under the said Act are Appealable. The decree of divorce by mutual consent is one such decree & hence, also appealable. It has been observed that Appeal under S. 96 of C.P.C. is on different footing and S. 96 [3] C.P.C. prescribing a bar of appeal against consent decree has no application here. Further I observe that a decree for divorce by mutual consent is not based merely on mutuality of the consenting parties, but the courts involvement in the decision making is inextricably a part of such decree. Possibility of an error, legal or factual, in such decision cannot be ruled out, and therefore, Appeal under S.28 HMA has been provided for.
Your Que. 2 - If there is no hope left for reconciliation and both parties agrees to show marriage on back date and successfully complete both motions of MCD then can this (fraudulent) MCD be challenged later (is there any duration again ???) by any one party saying that other party has forced them to show marriage on back date thus making such MCD void???? Any other risks for such MCD filed showing back date marriage???
In question 2 for the questions relating to alleged facts Legislature has cast obligations upon Court entertaining the proceedings under S. 13 [B] to record a finding that consent for divorce has not been obtained by force, fraud or undue influence. Thus legislature has visualised that there may be a case in which consent for divorce may be obtained and decided to provide a safeguard against abuse of this provision. Hence obligation has been cast upon the court to verify the same, and to record a satisfaction that the consent given by the parties is free and voluntary. Thus having visualized abuse of such provision for grant of divorce by mutual consent by use of force, fraud etc., it cannot be accepted that legislature did not provide for a remedy to the spouse aggrieved in such matters. To hold that remedy of appeal is not available to such aggrieved spouse, will be rendering nugatory the exercise of obligation cast upon the trial court by the Legislature.
Further question no.2 about indulgence in perjury by the appellant spouse cannot be answered at this stage in absence of sufficient materials, as it is found to be premature. No remand or calling of report from trial court in that respect is necessary as even otherwise the trial court has to look again into the voluntary nature of spouse admittedly doing perjury by way fraudulent statement / affidavit of 1 year separation prior to filing application as point of Law.
Your Que. 3 - One can challenge a closed contested divorce within a period of 90 days. What is the duration to challenge a MCD?
In question no. 3 for the question concerning limitation the Apex Court has clarified that any Appeal in HMA be it decree in a contested divorce suit matter or be it decree in a mutual consent divorce matter the Appeal i.e. challenge period is 90 days and donot try to put words in my mouth about back date separation etal. It does not matter to me as what you do with your concerned Court under your own hired advocate as same advise I cannot give.
I hope I have clarified all the three position in law vis-a-vis HMA The Act as in short reference question put up to me?
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