Appeal Against Decree Of Divorce By Mutual Consent – Barred By CPC And Family Courts Act Or Enabled By Legislations Relating To Matrimonial Disputes

1. INTRODUCTION

In civil disputes, a decree is the formal adjudication by courts which conclusively determines the rights of parties pertaining to the issues involved in the suit. When both parties mutually resolve the dispute, their agreed terms of settlement are typically formalized and recorded as a decree by the court, commonly referred to as a consent decree. A parallel concept exists in matrimonial law, wherein even marriages can be dissolved by way of mutual consent of the couple. However, there remains uncertainty regarding the legal status of such decrees of divorce by mutual consent, particularly as to whether they qualify as "consent decrees" within the meaning of the Code of Civil Procedure 1908 (CPC).

This question becomes particularly relevant when considering the remedies available to challenge such decrees of divorce by mutual consent. Usually, decrees passed in civil matters can be challenged by way of appeal as well as other modes such as revision or review in accordance with the CPC. However, the provisions relating to challenge of decree do not apply to consent decrees. Section 96(3) of CPC explicitly bars

2. STATUTORY PROVISIONS GOVERNING DIVORCE BY MUTUAL CONSENT

In India, matrimonial disputes are primarily governed by the Hindu Marriage Act 1955 (HMA), the Special Marriage Act 1954 (SMA), and the Divorce Act 1869. Each of the matrimonial laws i.e. Section 13-B of the HMA, Section 28 of the SMA, and Section 10A of the Divorce Act, provides for divorce by mutual consent inter alia in case of irretrievable breakdown of marriage.

Each of these matrimonial laws permit appeals against all decrees passed thereunder. Such a broad provision would in principle also include appeals against decrees of Divorce by Mutual Consent as well. However, akin to Section 96(3) of the CPC, Section 19 of the Family Courts Act specifically bars an appeal against any decree or order passed with the consent of the parties. This creates an evident inconsistency, as some interpret the absence of an express prohibition in the personal laws to mean that such decrees are appealable, while others rely on the explicit bar under the Family Courts Act to deny any challenge to them.

It is also pertinent to note that the bar lies specifically against appeals from "decrees passed by consent of parties" and not specifically as "consent decrees". Judicial precedents further indicate that, certain arguments have been advanced to bypass the bar contained in the Family Courts Act by contending that a decree of divorce by mutual consent is not, in the strict legal sense, a decree passed purely on the consent of the parties.

3. WHETHER A DECREE OF DIVORCE BY MUTUAL CONSENT IS A CONSENT DECREE?

The term "consent decree" is not specifically defined under any statute. However, it is commonly understood to refer to a decree passed by a court based on a written agreement mutually entered into by the parties to settle the dispute between them. In such cases, the court merely records and endorses the terms agreed upon by the parties.

The Hon'ble Supreme Court, in Pushpa Devi Bhagat (Dead) Through LR Sadhna Rai vs. Rajinder Singh and Ors. reported in 2006 (5) SCC 566 observed that, "a consent decree is nothing but a contract between parties superimposed with the seal of approval of the Court". Thus, it is evident that a consent decree essentially represents a contractual settlement that has been formally validated and enforced through the court's approval.

As regards the issue of whether a decree of Divorce by Mutual Consent can be considered as a consent decree, there has been divergence in the decisions of various High Courts.

1. While deciding whether a decree of divorce by mutual consent is appealable, the Hon'ble Punjab and Haryana High Court in the case of Krishna Khetrapal vs. Satish Lal reported in AIR 1987 P&H 191 observed that, a decree of divorce by mutual consent is not based solely on the agreement of the parties, as the matrimonial court must independently examine the facts, verify statutory requirements, and ensure that consent is free from force, fraud, or undue influence under Sections 13B and 23 of the Act. Since the court actively participates in the decision-making process and applies judicial scrutiny, the decree involves adjudication rather than mere acceptance of a settlement. The Hon'ble High Court of Bombay in the case of Sushama vs. Pramod reported in AIR 2009 BOM 111 concurred with this view.
2. Contrary to the aforesaid decisions, the Hon'ble High Court of Andhra Pradesh in the case of Omprakash vs. K. Nalini reported in AIR 1986 AP 167 observed that, "S. 13-B radically altered the legal basis of a Hindu marriage by treating it as an ordinary form of contract which competent parties can enter into and put an end to like any other contract by mutual consent. Just as the parties can obtain a consent decree from the courts under O. 23 R. 3 of the C.P.C., so they can now under S. 13-B of Hindu Marriage Act obtain a consent divorce"

4. MAINTAINABILITY OF APPEAL AGAINST DIVORCE BY MUTUAL CONSENT

From the aforementioned judgments, it is apparent that the observations of various courts are contradictory to each other. However, the Hon'ble Delhi High Court recently while dealing with the issue of maintainability of appeal against Decree of Divorce by Mutual Consent delved deeper into this issue. In the case of Anshu Malhotra vs. Mukesh Malhotra reported in 2021 (3) ALLMR, the Hon'ble High Court of Delhi differed from the observations made in the judgments of Krishna Khetrapal (supra), Sushama (supra) and held that there is no valid distinction between a decree dissolving a marriage by mutual consent and a consent decree passed in a civil suit. The Hon'ble Court explained that it cannot be said that the position under Order XXIII Rule 3 of the CPC differs from that under Sections 13B or 23 of the HMA; once the court is satisfied that the compromise is lawful and passes a decree on that basis, Section 96(3) of the CPC expressly bars any appeal against such a decree.

It further went on to say that the Hon'ble High Court's reasoning that, a Family Court's decree of divorce by mutual consent is based not only on the parties' consent but also on the court's satisfaction, is not persuasive. According to the Hon'ble Court, a similar requirement of judicial satisfaction exists CPC as well, yet the law remains clear that no appeal lies against a consent decree. It concluded by stating that, "We are therefore unable to hold a decree for divorce by mutual consent of a Family Court to be standing on any different footing than a consent decree of a Civil Court under Order 23 Rule 3 of the CPC."

Thus, the Hon'ble High Court of Delhi expounded the law pertaining to appeal against Decree of Divorce by Mutual Consent and held that a mutual consent divorce decree and a consent decree under O.23 R.3 of CPC are one and the same and thus, there is a clear bar to an appeal against such a decree.

This decision was thereafter upheld and reiterated in the case of Supriya Gumber vs. Sumit Gumber reported in MANU/DE/4418/2025. More recently, the Hon'ble High Court of Madhya Pradesh also, in the case of Adity Chakraverty vs. Teevan Prasad Prajapati reported in MANU/MP/2084/2024 concurred with this view and held that, by virtue of S. 96(3) of CPC, an appeal against a Decree of Divorce by Mutual Consent is not maintainable.

5. REMEDY AVAILABLE IN CASE DECREE OF DIVORCE BY MUTUAL CONSENT IS TO BE CHALLENGED

It appears that, in recent judgments the Courts have leaned towards holding that appeal is not maintainable against a decree of divorce by mutual consent. Thus, the question arises as to what is the correct remedy to challenge such a decree?

The same has been partially answered by the Hon'ble Supreme Court in the case of Manisha Anand vs Nilesh Anand bearing case no. SLP(c) 4530/2025, wherein, the Hon'ble Court observed that, in case a decree of divorce by mutual consent is to be challenged on ground that the consent was obtained by fraud, the correct remedy is to approach the Family Court itself for recall of the consent decree rather than filing an appeal.

Additionally, the Hon'ble Delhi High Court, in the case of Supriya Gumber (supra) has extensively discussed this issue and held that allegations of fraud, coercion, or misrepresentation must be raised through a review petition before the Family Court that passed the decree. The Hon'ble Court while discussing the chronology of events held that the appropriate remedy to challenge the decree of Divorce by Mutual Consent would be to file an application for review under Order XLVII Rule 1 read with Section 114 of the CPC under either of the 3 grounds mentioned under the law.

6. CONCLUSION

It is apparent that, different High Courts in India have divergent views on the maintainability of appeals against decrees of Divorce by Mutual Consent. The Bombay High Court and Punjab & Haryana High Court in the cases of Sushama (supra) and Krishna Khetrapal (supra) respectively have held that such decrees are appealable. In contrast, the Hon'ble Delhi High Court in the case of Anshu Malhotra (supra) and Supriya Gumber (supra) as well as the Hon'ble High Court of Madhya Pradesh in the case of Adity Chakraverty (supra) have held that appeals against a Decree of Divorce by Mutual Consent are barred by law.

Notably, the Hon'ble Supreme Court in the case of Manisha Anand (supra) has neither considered the conflicting judgments of various High Courts, nor did it undertake a detailed analysis of whether a decree of divorce by mutual consent is equivalent to a consent decree under Order XXIII Rule 3 of the CPC. Having said that, the judgment does offer some semblance, as it can be inferred that an appeal against a decree of divorce by mutual consent is not maintainable.

In light of all inconsistent judicial approaches, there is a pressing need to reconcile the contradictory positions adopted by various High Courts on the issue of challenge against decree of Divorce by Mutual Consent.

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