1. This revision by the wife is directed against an appellate decision upsetting an order of the trial court recalling a decree passed by it under S. 13-B of the Hindu Marriage Act dissolving the marriage between the petitioner and the opposite party by a decree of divorce by mutual consent.

2. The undisputed facts are that the marriage between the parties was solemnised on 18-6-1979. The first issue was born on 12-5-1980 and the second on 19-8-1981. On 9-2-1982 a joint petition was filed by the parties under S. 13-B of the Hindu Marriage Act (for short, ‘the Act’) for dissolution of marriage by a decree of divorce alleging that both the parties had fallen out and were living separately since 16-12-1980; the petitioner had deserted the opposite party and was residing at her father's place; attempts to bring about reconciliation between them had failed. The application was filed through a common lawyer. On 10-8-1982 just on completion of six months, a joint petition was filed by the parties making a motion for dissolving their marriage by a decree of divorce. The court examined the petitioner and the opposite party. She deposed that she was living separately from her husband since 16-12-1980 and there was no collusion in filing the petition and she was willing for a divorce. So did the husband. Thereupon the learned Subordinate Judge passed a decree of divorce dissloving the marriage.

On 23-8-1982 a petition was filed by the petitioner under section 151 read with Order 47, Rule 1 of the Code of Civil Procedure (for short, ‘the Code’) for recall of the order/decree passed on 10-8-1982. The gravamen of the allegations was fraud and collusion. She alleged that she had lived with the opposite party till 17-8-1982, even after the filing of the application for passing a decree. The opposite party controverted the allegations. During the hearing, three affidavits were filed on behalf of the petitioner. The first one was of Agadhu Charan Naik who stated on oath that his taxi was hired by the opposite party on 17-8-1982 to carry the petitioner from the husband's residential quarters at Unit-IX, Bhubaneswar to her father's place at Sankarpur, Cuttack. The second one of Nimai Charan Behera was to the effect that the petitioner was living with the opposite party till 17-8-82 and the third one of Gobind Chandra Mohanty was also to the same effect. No evidence was laid by the opposite party by way of oral evidence or through affidavits. The learned Subordinate Judge upon a consideration of the materials and the circumstances, held that fraud had been practised on the petitioner and on the court for obtaining a collusive decree of divorce. Upon the aforesaid holding the decree of divorce was recalled. The opposite party's appeal against the aforesaid order having been allowed, this Court in Civil Revision No. 279 of 1983 directed the appellate court after setting aside the appellate order to rehear the matter afresh. Upon rehearing the appellate court held that the application for recall of the decree under section 151 of the Code was not maintainable. Hence, the present revision by the wife.

3. Two questions fall for consideration: (a) whether a consent decree obtained by exercise of fraud, undue influence or coercion is liable to be recalled or set aside by the court passing the decree in exercise of its inherent power and (b) if the trial court was right assuming it had jurisdiction under S. 151 C.P.C in recalling its decree on the facts and in the circumstances of the case.

4. There is almost unanimity in views amongst High Courts in India that where fraud is practised on a party in contradiction to fraud practised on court, the remedy of the aggrieved party lies in filing a separate suit and not by invoking the inherent jurisdiction of the court. Where, however, fraud is practised upon the court, the matter can be set right in exercise of powers under S. 151 C.P.C See Sadho Saran Rai v. Anant Rai*, AIR 1923 Pat 483: Sabitri Thakurain v. F.A Savi, AIR 1927 Pat 354 (2) and Basudeo Misir v. Mt. Paudharo Kaur AIR 1934 Pat 41 and Sheodhar Prasad Singh v. Ramdeo Prasad Singh*, AIR 1934 Pat 229. I quote from Sadho Saran's case AIR 1923 Pat 483:

“The question then arises whether the court had power to set aside the compromise decree either in review or in the exercise of its inherent power. There is a long list of cases of the Calcutta High Court, of the Bombay High Court and of the Madras High Court in which it has been broadly laid down that a Court has inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties. It was urged before us on behalf of the defendants-appellants that the only remedy is by suit and that once the decree has been signed there is no jurisdiction in the Court to set it aside on the ground of fraud. A distinction has been drawn in the cases of the Indian Courts between a fraud practised upon a party and a fraud practised upon the Court. It has been laid down that where the question is whether there was a consent in fact, there is power in the Court to investigate the matter in a properly constituted application and to set aside the decree if it is satisfied that a party never in fact consented to it but that the Court was induced to pass the decree on the fraudulent representation made to it that the party had consented to it, but that where there is a consent in fact, that is to say, where the parties have filed a compromise petition and they admit that they have filed it but one of the parties alleges that his consent was procured by fraud, the Court cannot investigate the matter either in review or in the exercise of its inherent power and that the only remedy of the party is to institute a suit to set aside the decree on the ground of fraud. In other words, the factum of the consent can be investigated in summary proceedings, but the reality of the consent cannot be so investigated. In Hakimair v. Basdeo Sahi ((1911) 17 Cal WN 631) it was held by Mookerjee and Caspers JJ. that where an order is obtained from the Court on the allegation that both parties had assented to it and it is asserted by one of the parties that he never consented to the order in question, it is open to the Court to review the order and recall it. In the, case of Peary Choudhury…Objector, v. Sonoo Dass…Applicant, Opposite Party. ((1914) 19 Cal WN 419) it was held by Chatterjee and Greaves JJ. that, it is the inherent power of every court to correct its own proceedings when it has been misled and that it has complete jurisdiction to recall the order on being apprised of the true facts……..”

Though no doubt in AIR 1985 Pat 55 (Maimun Nisa v. Mohammad Khodabin), it has been held that an application under S. 151 C.P.C is maintainable to set aside a consent decree obtained by practise of fraud on a party, the case turned on its peculiar facts upon a consideration of which it was held:—

“…..If it is found that any fraud has been committed upon the party and as a result of that fraud the Court was misled into passing certain orders which otherwise the Court would not have passed, then it must be held that a fraud has been practised upon the Court itself. In such a situation the Court must act under its inherent powers.”

5. The learned appellate court in this case has held that inherent jurisdiction is not available to be exercised as the fraud practised was not on the Court but on the party relying on a decision in the case of Kewal Krishna v. Shiv Kumar, AIR 1970 Punj & Har 176, where it has been held that a consent decree obtained by coercion can be set aside by a separate suit, not by an application under S. 151 of the Code.

6. It is, therefore, necessary to embark upon an exercise to determine whether fraud was practised on the party or on the Court. Before that exercise is taken, it is worthwhile to refer to Section 13-B of the Act under which the application was made by the parties for dissolution of marriage by a decree of divorce.

“13-B(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) 1976 on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in this meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

This provision was introduced into the Hindu Marriage Act by the Amending Act (68 of 1976), recognising the principle that two unwilling spouses need not be kept bound to the matrimonial vow where there has been an irretrievable break down of marriage. The opening words of the section cast a solemn duty on the court by subjecting the provision to the other provisions of the Act, especially to S. 23. S. 23 contains some clauses of considerable importance and consequence relating to the power and duty of the court in the matter of granting any of the reliefs recognised under the Act. It is a well established principle of matrimonial law that decree of dissolution of marriage are to be made only upon strict proof. Proceedings under the Act are not of the character of original suits. The standard of proof required is that the Court must be satisfied that the ground for relief is established beyond reasonable doubt. It makes no difference whether the proceeding is defended or not. The Court must vigilantly see that all the requirements of law are fulfilled and the safeguards of the law are duly observed (Mulla Hindu Law, 15th Edn. Page 847). The scheme and the purpose of the Act go to show that utmost vigilance, care and circumspection that the law expects from the courts. Matrimonial cause is not merely a civil action. It involves the lives and happiness of two human beings who have taken the marital vow not to be separated until “death doth tear them asunder”. Section 23, therefore, says:

“23. (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—

(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence.

(e) ….and in such a case, but not otherwise, the court shall decree such relief accordingly.”

Clause (o) reiterates the concern and anxiety of the legislature. It is worthwhile again to draw the attention of courts trying matrimonial causes to the degree of care and vigilance that is expected of them by law. Said Lord Macdarmott in Preston Jones v. Preston Jones (1951) AC 391:

“The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the court might be satisfied, in respect of a ground for dissolution, with something less than proof beyond reasonable doubt.”

While conferring right on the spouses to dissolve their marriage by a decree of divorce, the Legislature built into the provisions safeguards by way of clause (bb) in S. 23(1). It only behoves the court not to betray the anxiety and concern of the legislature by disposal of matrimonial cause like any other civil action, for, as S. 41 of the Evidence Act lays down, the final judgment in the matrimonial jurisdiction is a judgment in rem and is conclusive proof of the legal character which it confers, declares or taken away. Hence, where in a matrimonial case a decree has been passed in contravention of the mandatory provisions of the law, the ordinary principles do not apply. I am in respectful agreement with what was observed by R.S Patnaik (as he then was) and T.P Mukerjee, JJ. in Smt. Hirakali v. Dr. Ram Asray Awasthi, AIR 1971 All 201:

“….. Different principles apply to decrees in matrimonial actions. Such decrees operate as judgments in rem as distinguished from decree in other civil causes which operate as judgments in personam. A decree in a matrimonial cause not passed in strict conformity with the provisions of Section 23 would not be a decree in rem…..”

7. It now remains to test the present case against the touch-stone of the aforesaid principles. S. 13-B(1) requires a petition jointly presented to the court by both the parties to the marriage. It must clearly and categorically indicate (a) that the parties have been living separately for a period of one year or more before the presentation of the petition (b) that they have not been able to live together and (c) that they have mutually agreed that the marriage should be dissolved. The only paragraph that contains the grounds, in the joint petition filed by the parties, is paragraph-3 and reads as under:

“3. That due to lack of adjustment and difference of temperament both the parties are not living separately since 16-12-80. The petitioner No. 1 (one) has deserted petitioner No. 2 (two) on 16-12-80 (Sixteenth December Eighty) and is now residing at her father's house at village Shankarpur. All the attempts of the well-wishers of both the petitioners to reconcile them have failed and lastly it was mutually agreed by both the parties to dissolve their marriage.”

It is significant to note that one of the grounds which is also equally essential for the grant of the relief under S. 13-B is missing, namely, the parties have not been able to live together. Hence the court was not competent to exercise jurisdiction under S. 13-B. Both the parties were examined on Aug. 10, 1982. Since the evidence is short I am extracting the same in its entirety.

Puspalata Rout:

“I am one of the petitioners. I married petitioner No. 2, Damodar Rout on 18-6-79 and the marriage was solemnised at CTC. Since 16-12-80 both of us are living separately. There is no collusion in filing the petition. I am willing for the divorce.”

Two of the grounds were set forth. The other essential ground, namely, they have not been able to live together was missing. Similar is the evidence of Damodar Rout (O.P herein).

“I am petitioner No. 2 in this case. Petitioner No. 1 is my legally married wife. We have filed the joint petition for divorcing each other. We married each other on 18-2-79 and our marriage was solemnised. The facts mentioned in my petition are true. There is no collusion for the divorce. I am willing for the divorce.”

Hence, neither in the original petition initiating the proceeding nor in the evidence of the parties recorded at a subsequent stage, was one of the vital grounds, a pre-condition for dissolution of marriage by a decree of divorce by mutual consent, present. The petition under S. 13-B is perched on a tripod. It has to topple when one leg is absent; one support is missing. So should have been the fate of the petition presented by the parties. However, a decree of divorce was passed and that gave rise to the petition filed by the wife on 23-8-82 under section 151 read with Order 47, Rule 1 of the Code of Civil Procedure for the recall of the decree either in exercise of inherent power or by way of review. Quite a lengthy petition running to 8 pages containing serious allegations of fraud, coercion, undue influence was filed. No doubt, the husband controverted the allegations, with a view to showing that the parties were living separately for a period of one year or more. Three affidavits were filed on behalf of the wife, the purport whereof was to show that the wife left the husband on 17-8-82, i.e, she was living with the husband not only at the time of presentation of the application under S. 13-B on 9-2-82 but even when the decree was passed, which were relied upon by the trial court to recall the decree. If she was living with the husband even after the decree, the decree was collusive, the decree was fraudulent and the joint petition was either fraudulent or had been brought out by way of practice of fraud, coercion or undue influence on the petitioner. At this stage, I need only advert to a feature in the joint petition which appears to be unusual and surprising. When the joint petition was filed by both the parties it was not necessary to state that the wife had deserted the husband on 16-12-80. It cast an aspersion on the wife by making her admit that she was the deserter. The joint petition could have simply stated that both of them were living separately since 16-12-80, i.e, for a period of one year or more before presentation of the petition. That gives a clue to the understanding of the allegations of the wife.

8. Then take again the conduct of the wife. The application for recall of the decree came close upon the heels, barely on the 13th day of the passing of the decree. The materials on record, the circumstance and the conduct leave no manner of doubt that fraud was practised on the wife. But that does not solve our problem unless it can be said that fraud was practised on the court so that an application for recall of the judgment under the inherent power could be entertained. Not each and every fraud on the party is a fraud on the Court. But where fraud is pervasive, makes administration of justice a mockery, holds dispensation of justice in ridicule, it can be said that it not only engulfs the party but reaches the court as well. That is how I understand some of the decisions of the Courts when they hold that fraud practised on the party in the facts and circumstances of the case was also a fraud practised on the Court. That is what has happened in this case and I in disagreement with the appellate judge hold that an application for recall of the judgment in exercise of inherent power was maintainable.

9. Even otherwise, also having regard to the fact that one of the essential pre-conditions for maintaining an action under S. 13-B was wanting in the petition as well as in the evidence, the decree for divorce disclosed an error apparent on the face of the record. Because all the three elements of S. 13-B(1) are cumulative, no decree under S. 13-B can be supported by only two of them. Alternatively, therefore, the case was a fit one for review under O. 47, R. 1 of the Code. The petition was also styled as such. Though the trial judge had not adverted to this aspect, his conclusion can be sustained by this approach also. Hence, I vacate the appellate judgment and restore that of the trial Judge.

10. Before parting with the case I must note the urgent necessity of establishing Family Courts. Matrimonial causes call for a different attitude, outlook and acumen. Sometimes reconciliation is possible by dogged perseverance towards that end. Matrimonial courts should be presided over by specially trained personnel with provisions for pre-trial as well as post-trial counselling. A total reorientation in the attitude and approach is necessary. It would be improper to be critical of our courts. Having regard to the stress and strain of routine work, it is difficult for them to cope up with the exacting requirements of an adjudicating mechanism in this area.

11. Why have not we so far family courts? though about a decade and a half back the Law Commission of India under the Chairmanship of Justice Gajendragadkar (as he then was) recommended:—

“…..the Court ought to adopt a human approach an approach radically different from that adopted in ordinary civil proceedings, and that the Court should make reasonable efforts at settlement before commencement of the trial. In our view, it is essential that such an approach should be adopted in dealing with matrimonial disputes. We would suggest that in due course, States should think of establishing family courts, with presiding officers who will be well qualified in law, no doubt but who will be trained to deal with such dispute in a human way, and to such courts all disputes concerning the family should be referred. What we have said in our Report on the Civil P.C should be treated as a part of the present Report also. We are clear in our mind that if these measures are adopted, they will got a long way towards the proper resolution of such disputes. We may add that selected judicial officers could be posted in courts empowered under both the Act, and by dealing with disputes concerning the family, they will be able to acquire experience and knowledge which should not only be of value of them but will ultimately benefit the society.”

It is profitable to extract the following from the report of the National Committee on the ‘Status of Women in India’ appointed by the Government of India in 1971:

“The statutory law in all matrimonial matters follows the adversary principle for giving relief, i.e, the petitioner seeking relief alleges certain facts and the respondent refutes them. In addition, most of the grounds in these statutes are based on the ‘fault principle’ instead of on the breakdown theory. As a result, strong advocacy rather than family welfare is often the determining factor in these cases. The absence of distinction between matrimonial cases and other civil suits leads to inordinate delay which stands in the way of conciliation and further embitters the relationship of the parties. Conciliation which ought to be the main consideration in all family matters, is not the guiding principle in the statutes dealing with them. We, therefore, strongly recommend the abandonment of the established adversary system for settlement of family problems and the establishment of family courts which will adopt conciliatory methods and informal procedure in order to achieve socially desirable results.”

At page 123 of the book ‘Indian Women’ published by the Ministry of Information, Government of India, occurs this passage:

“The establishment of family courts is yet another aspect which will have to be taken in hand immediately by the legislature……”

Chief Justice of India the other day observed that the courts had an important role to play and urged them to interpret the marriage laws on the “anvil of life's realities and not by applying cut and dried rules resting on technical considerations.”

12. It is, therefore, high time that a serious thought was given and speedy follow-up action was taken to translate into action the recommendations of the Law Commission and other high level bodies and family courts are established by the State Government so that this State could rank as one of the progressive States in the country. As was observed by a learned Judge: “Observing the tearful eyes of the deserted wives and neglected children the conscience of the Court hopes; sooner, the better.”

13. In the result, the revision is allowed. There would be no order as to costs.

Revision allowed.