MADAN MOHAN PUNCHHI, J.

(1.) Two significant questions of law, mentioned hereafter, have been referred by S.S. Kang, J. for determination by a larger Bench and under orders of Honble the Chief Justice have been placed before us, for the purpose. They are :

(1) Whether an appeal under S.28 of the Hindu Marriage Act (" the" for short) is competent against a consent decree in the face of provisions of Sub-S. (3) of S.96 of the Civil P.C.; and (2) Whether a Matrimonial Court can dissolve a marriage by a decree of divorce between two Hindus on the basis of a compromise entered into between the parties during the pendency of the divorce petition without following the procedure prescribed by S.13B(2) and without satisfying the requirements of S.23(1)(c) of the "

These have arisen in a narrow sphere.

(2.) The appellant in the present FAO is the wife and the respondent is her husband. The husband on 26th July, 1980, filed a petition for divorce under S.13 of the Hindu Marriage Act, 1955 (for short, the) on various grounds. During the pendency of the petition on 29th May, 1984, a compromise deed was placed before the Court trying the cause. According to the terms of the compromise a decree for divorce was to be granted in favour of the husband it forming part of the decree-sheet. The learned Judge recorded the statements of the parties and relying on two decisions of this Court in Devinder Singh Talwar v. Loveleen Kaur, 1982 Marriage LJ 94, and Jagjit Singh v. Gunwant Kaur, 1978 Hindu LR 696, granted a decree of divorce in favour of the husband. The wife has appealed to this Court. At her instance, the second question has cropped up and the first question at the instance of the husband.

(3.) So far as the first question is concerned, nothing much has been said to the maintainability of the appeal. Yet since the question has been referred we need examine it. It is well known that a right of appeal is a creature of the statute. It is a substantive right and not part of procedure. Section 28(1) of theprovides a right of appeal. It says : All decrees made by the court in any proceeding under the shall, subject to the provisions of Sub-Sec. (3) be appealable as decree of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. It is significant that all original decrees made by the Court under the are appealable. These decrees may be consent decrees or otherwise. Another significant feature in the is the provision of S.13B whereunder divorce by mutual consent can be obtained. Decree of divorce by mutual consent is also appealable under S.28 of the. So the scheme of the is not averse to passing of consent decrees (considerations under S.23 apart) and the appeal against such decree is maintainable by either party as of right.

(4.) In contrast, the appeal under S.96 of the Civil P.C. is on a different footing, for Sub-Sec. (3) thereof debars an appeal from a decree passed by the Court with the consent of the parties. The bar to an appeal against consent decree is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forgo their right of appeal, by any lawful agreement or compromise or even by conduct. See in this connection K.C.Dora v. Guntreddi Annamanaidu, 1974 1 SCC 567 [LQ/SC/1973/389] . Here the Court plays no role of justicing. The parties do justice to themselves by consent and the Court puts a seal thereon as if the decision is of its own. It is for this reason that the Legislature in its wisdom considered it advisable not to provide a re-hearing of the matter, for else appeal is in our processual law nothing but that.

(5.) An appeal against the decree of divorce by mutual consent distinctly is not merely on consent of the parties, for the matrimonial Court is involved in decision making so that it accords not only with the provisions of S.13B of the but also S.23 of the. In Sub-Sec. (1) of S.13B of the, a joint petition by the spouses can be presented to the District Court on the ground that they have been living separately for a period of one year or more before the presentation of the petition and that they have not been able to live together and further that they have mutually agreed that the marriage should be dissolved. The petition then lies in hibernation for six months and under Sub-Sec. (2) both the parties have to activate it on motion to the Court. It is then that the Court enters upon an enquiry into the facts whether the marriage has been solemnized and whether the averments in the petition are true and further if there are no impediments in the way as conceived of in S.23 and in particular of Sub-Sec. (1)(bb) that such consent has not been obtained by force, fraud or undue influence. Thus, a decree for divorce by mutual consent is not based merely on mutuality of the consenting parties but the courts involvement in decision making is inextricably a part of the decree. And since the possibility of an error, legal or factual, entering in the decision making cannot be ruled out, an appeal under S.28 of the has advisedly been provided. Besides, S.21 of the said Act says that subject to other provisions contained in the said Act and to such rules as the High Court may make in this behalf all proceedings under the said Act shall be regulated, as far as may be, by the Civil P.C. 1908. Thus the proceedings in the appeal are to be regulated as far as may be, by the Civil P.C. without altering the substantive right of appeal to the parties concerned. On the above analysis and differentiation, the conclusion is inescapable that an appeal against a consent decree under S.13B of the is appealable under S.28 of the and Sub-Sec. (3) of S.96 of the Civil P.C. is no bar. Similarly any other consent decree passed under the said Act is also appealable, for the Court under S.23 will record its approval thereto only if satisfied :

"(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-cl. (a), sub-cl. (b) or sub-cl. (c) of cl. (ii) of S.5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in cl. (i) of Sub-Sec. (1) of S.13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and c) the petition (not being a petition presented under S.11) is not presented or prosecuted in collusion with the respondent, and d) there has not been any unnecessary or improper delay in instituting the proceeding, and e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly."

(6.) Thus, we answer the first question in the affirmative i.e. in favour of the appellant-wife and against the respondent-husband.

(7.) One can get gripped with the second question by taking a close look at the provisions of S.13B reproduced hereafter and the provisions of S.23(1)(bb) and (c) reproduced above :

"13-B. Divorce by mutual consent. - (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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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 the presentation of the petition referred to in Sub-Sec. (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the 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."

As hinted earlier, both the Sub-Sections of the said provision operate at different points of time. The first one operates when presenting the petition. The second one operates when deciding the petition. At both points of time, both parties must present it and pursue it. At the first point of time, the parties jointly have to present a petition on grounds :

i) They have been living separately for a period of one year or more before the presentation of the petition; ii) They have not been able to live together; and iii) they have mutually agreed that the marriage should be dissolved. The Court at that stage except for receiving and registering the petition takes no notice of it. For six months, the petition remains dormant. After six months if the parties remain consensual they move the Court under Sub-Sec. (2). They cannot do so later than 18 months after the presentation of the petition. If the petition is withdrawn in the meantime, the Court has nothing to do in the matter. It is only within that period, if the petition is pending, that the court embarks on an enquiry to be satisfied on the following particulars : a) Was the marriage solemnized between the parties b) Were the parties living separately for more than one year before the presentation of the petition c) Were they not able to live together at the time of the presentation of the petition and continue to live apart d) Was there mutual agreement of the dissolution of marriage arrived at before or at the time of the presentation of the petition and e) that the averments made in the petition are true and conditions under S.23 of the are fulfilled;

It is then and only then that the Court grants decree of divorce by mutual consent. In other words, amongst other factors the Court will exclude the possibility of the consent of either party being obtained by force, fraud or undue influence and see through if there is any collusion. There is a world of difference between consent and collusion. Whereas consent between two people is a state of being of the same mind, collusion between the two is a secret agreement to deceive. It is an effort to mislead the Court from the true state of affairs. So, far goes the letter of the law. But the spirit caught by this Court is reflected from the decision quoted hereafter.

(8.) In Jagjit Singh v. Gunwant Kaur, 1978 Hindu LR 696 (Punj and Har) A.S. Bains, J. accorded approval to a compromise between the two spouses at the appellate stage and granted divorce by mutual consent under S.13B (1) of the without resorting to any discussion. The same judgement is repeated in 1979 Hindu LR 26.

(9.) In Jagmohan Ahuja v. Smt. Sudesh, 1979 Hindu LR 303 (Punj and Har) M.R. Sharma, J. while deciding a revision petition called for the original record of the divorce petition pending between the parties before the Additional District Judge, Ludhiana, and by permitting the conversion of the same to one for divorce by mutual consent under S.13B of the granted divorce on recording satisfaction that the petition had not been filed with any delay nor the parties were in collusion with each other.

(10.) In Gian Dev v. Pushap Lata, F.A.O. No. 110-M of 1976 decided on 28th Mar. 1977 (Punj and Har), M.R. Sharma, J. granted divorce to the spouses on their joint statement at the appellate stage and the original petition for annulment of marriage was deemed to have been amended to one for divorce.

(11.) In Dharamvir v. Dr. (Mrs.) Promila, FAO No. 76 of 1978 decided on 18th Oct. 1978, M.R. Sharma, J. allowed divorce by mutual consent at the appellate stage by a deeming amendment to the original petition from back date.

(12.) In Dr. Surinder Pal Kaur v. Mohinder Partap Dass, 1982 Marr LJ 187, M.R. Sharma, J. at the appellate stage entertained a petition under S.13B of the directly in this Court and having adjourned the same for six months, an the resumed date of hearing recorded statements of the parties and granted divorce by mutual consent by recording satisfaction that the petition was not collusive.

(13.) In Jai Bhagwan v. Anita Rani, 1984 Marr LJ 7 (Punj and Har), I.S. Tiwana, J. upset a decree passed under S.13-B of the by the trial Court on the ground that proper procedure had not been adopted in that case laying emphasis on the procedural requirements of joint filing of the petition, six months elapsing, but not more than eighteen months, satisfaction of the Court with regard to the marriage and the averments of the petition being true.

(14.) In Jagroop Singh v. General Public, a Division Bench consisting of P.G. Jain and D.S. Tewatia, JJ. allowed a divorce petition by mutual consent in appeal, and upset the view of the trial Judge denying relief on the sole ground that the spouses had grown-up children. The Bench observed that there was no collusion between the parties and the fact that they had five grown up children would not be a ground for not allowing the divorce by mutual consent.

(15.) In Ritu Sobha v. Dr. Dharampal, FAO No. 33-M of 1985, a Division Bench consisting of D.S. Tewatia and Surinder Singh, JJ. decided at the motion stage on 22nd Nov. 1985, allowed the divorce under S.13B of the at the appellate stage : The Bench observed :

"In view of the fact that the parties have been living separately for a period of more than a year, which fact is evident from the findings of the matrimonial court and the parties having now desired to secure a decree of divorce by mutual consent in terms of S.13B of the Hindu Marriage Act and having made statements to that effect in Court we are inclined to declare their marriage dissolved and grant a decree of divorce without waiting for the period of six months as envisaged in Sub-Sec. (2) of S.13-B of the Hindu Marriage Act as the said period is merely meant to give time to the parties for rethinking."

The Bench further observed :

"In the present case, the parties have been litigating for quite some time and having not reconciled to live together, it would be futile to prolong their agony by allowing six months period before passing the decree of divorce."

15A. And lastly, one of us (M.M. Punchhi, J.) in Major Ranbir Sangha v. Mrs. Nargis Sangha, Criminal Misc. No. 5309-M of 1980 decided on 3-8-1982 : (Reported in 1982 Marr LJ 605), on the statements of the parties embroiled in long litigation entertained a petition under S.13B of the in this Court and granted divorce by observing as follows :

"I can see no violation of the spirit of the statute when marital discord has otherwise been brought to surface in court, though in criminal proceedings, leaving out any chance of collusion between the parties so as to play a fraud on the statute. Collusion being out of picture and litigation between the parties having remained rife for a time more than six months tends me to invoke the inherent jurisdiction of the High Court (for it is not a District Court hedged by a time factor under S.13-B of the) and grant divorce to the parties under the spirit of S.13-B of the Hindu Marriage Act, though not in accordance with its letter. I cannot shut my eyes to the reality of the situation that I have placed before me two human beings, who have wrecked their lives in mutual acrimony, but now standing at their respective launch pads look forward to start their lives anew. I see no reason why I should refuse their prayer to grant them relief now and let them wait for six months, and make it prone to many a slip between the cup and the lip. And even otherwise the spirit of S.13-B of the Hindu Marriage Act in providing for a six months period to lapse between the prayer and ultimate grant of divorce is, as it seems to me, based on the good legislative sense that there may be a chance for reconciliation between the parties. I have satisfied myself that there is none whatsoever in the instant case and rather the parties want to break their matrimonial bond right now at this moment."

(16.) As is plain from the afore-quoted judgments this Court has granted relief to the parties spirit-actuated, where there was a background of litigation and acrimony and divorce by mutual consent appeared to the Court to be the only solution as asked for by the parties. After all it is perceivable that while applying mind in that regard the Court is put at the stage of S.13-B(2) of the and can look back to the conduct and relationship of the parties, to the litigious course they have travelled and other surrounding circumstances to mould the relief. It is also significant to note that the above cases arose only in the backdrop of a long litigious course between the parties. In all these cases, there was more than one year period of the parties living apart and their litigious postures and conduct revealed that their living together was not possible. And additionally there was no collusion when divorce by mutual consent was asked by waiving the six months hibernating period. This Court in each of the said cases, as it appears to us, perceived substantial compliance of the requisite elapse of periods conditional to the grant of relief and on recording satisfaction of free consent and lack of collusion, granted the relief instantly. And in our view rightly. The fact of fruitful years in human life being short and the possibility of the litigating parties rearranging their lives after the divorce by mutual consent, also seem to have been the pervasive factors when this Court granted instant relief without letting the parties to go in for another bout of litigation in the processual mill.

(17.) For the aforesaid view thus, we are of the view that if the circumstances warrant, as has been spelled out above, the matrimonial Court can dissolve a marriage by a decree of divorce between two Hindus on the basis of a compromise entered into between the parties during the pendency of the divorce petition without strictly following the procedure prescribed by S.13-B(2) but on satisfying itself of not only the requirements of S.23(1)(c) but also of the specifically applicable S.23(1)(bb) of the. Thus question No. 2 afore-posed is answered in the said manner.

(18.) Since the questions of law have been answered, the main matter be sent back to the Honble single Judge for decision. D. S. TEWATIA, J. :- I agree. Answered accordingly.