1 WP-5299-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5299 OF 2011 Ankur Kanchan Dey ..Petitioner Vs Mrs.Oliva Cajetan Vaz ..Respondent -- Ms.Seema Sarnaik, for the petitioner. Mr.Hitesh Vyas i/b.Mr.Ajit Kulkarni, for respondent. -- CORAM : R.G.KETKAR, J. DATE : 21 st SEPTEMBER, 2011 P.C.: Heard Ms.Seema Sarnaik, learned counsel for the petitioner and Mr.Hitesh Vyas, learned counsel for the respondent. 2] Rule. Mr.Vyas waives service on behalf of the respondent. By consent of the parties, Rule is made returnable forthwith and is heard 2 WP-5299-11.sxw finally. 3] By this petition under Article 227 of the Constitution of India, the petitioner (hereinafter referred as “husband”) has challenged the judgment and order dated 26 th April, 2011 passed by the learned Principal Judge, Family Court – 1, Pune below exhibit 11 in Misc. Application No.20 of 2011. The application at exhibit 11 was filed by the husband for rejecting Misc. Application No.20 of 2011 filed by the respondent (hereinafter referred as wife) on the ground that the same is barred by law as per Order 7 Rule 11(d) as also is barred by the principles of res-judicata as per Section 11 of the Code of Civil Procedure, 1908 (for short C.P.C.). The wife filed Misc. Application No.20 of 2011 for declaration that the decree passed on 22 nd October, 2008 in P.D. No.138 of 2008 be declared as null and void and not binding o the parties as also custody of minor son Joy. 4] The petitioner – husband and respondent – wife were married on 1 st June, 2003 and out of said wedlock, son by name Joy was born on 26 th March, 2007. The husband filed petition No.B-35 of 2008 on 3 WP-5299-11.sxw 14 th October, 2008 under Section 7 of the Family Courts Act, 1984 for declaration that the marriage between the parties is null and void. He has also filed petition No.D-138 of 2008 on 14 th October, 2008 for his appointment as guardian as also for permanent custody of minor son Joy as per Section 19 and 25 of the Guardians and Wards Act, 1890. As far as petition no.B-35 of 2008 for dissolution of marriage is concerned, it was contended that husband is a Hindu by religion and wife is a Christian. They got married as per the Hindu rights and rituals. Before performing the marriage rituals as per the Hindu Customs, the wife did not covert herself to Hindu and consequently, the marriage is void ab-initio. The deposition of the husband was recorded at exhibit 7 and he reiterated the same story as narrated in his pleadings. The wife did not cross-examine him. The wife’s evidence was recorded at exhibit 8 in which, she deposited that she was served with the copy of the petition and she knew the contents thereof. She further deposed that she is Christian by birth and she did not convert herself to Hindu prior to marriage. She further deposed that she did not wish to contest the petition. Both the parties were referred to the Marriage Counselor and they jointly filed 4 WP-5299-11.sxw consent terms before the Marriage Counselor. The wife further deposed that she did not wish to claim any maintenance from the husband. By judgment and order dated 22 nd October, 2008, the learned Principal Judge of the Family Court decreed the petition and declared that the marriage between the parties is null and void. The consent terms filed at exhibit 6 were ordered to form part of the decree. 5] As far as the petition No.D-138/2008 filed by the husband for appointment of guardian of minor son Joy and permanent custody is concerned, the parties were referred to the Marriage Counselor and they jointly filed consent terms before the Marriage Counselor. The wife agreed to give permanent custody and guardianship of minor son Joy to the husband. The depositions of the husband and wife were recorded at exhibits 7 and 8, respectively. Both of them stated that they jointly filed consent terms before the Marriage Counselor and both of them prayed for decree as per the consent terms. In view of the evidence led by both the parties, the learned Principal Judge of the Family Court held that the husband is entitled to 5 WP-5299-11.sxw permanent custody and guardianship of minor son Joy and accordingly, decreed the petition and ordered that the consent terms at exhibit 6 to form part of the decree. 6] It seems that sometime in the month of March, 2009, the husband shifted from Pune to Gurgaon along with minor son Joy. Even the wife visited Gurgaon in the month of March, 2010 along with her parents to celebrate birthday of the husband which falls on 26 th March. According to her, the husband was not taking proper care of minor son Joy. He was not giving necessary vaccination to Joy such as Polio, Hepatitis A, Typhoid fever, Pneumonia etc. In the month of December, 2010, she was severely beaten by the husband. He also assaulted minor son Joy mercilessly. Ultimately, the wife along with minor son Joy came to Pune by air as they were driven away out of the house. On these among assertions, she filed P.D.No.146 of 2010 for permanent custody of Joy. 7] The husband filed Darkhast no.2 of 2011 for executing the decree passed in P.B.No.138 of 2008 whereunder, he was given 6 WP-5299-11.sxw permanent custody. In the petition filed by the wife for permanent custody, the husband submitted an application at exhibit 15 contending that the Family Court at Pune has no jurisdiction to entertain and try the petition. According to him, as per Section 9 of the Guardians and Wards Act, 1890, the Court at a place where the minor ordinarily resides, will have jurisdiction to try and entertain the petition. The wife resisted that application. 8] In so far as Darkhast filed by the husband is concerned, the wife resisted the same on the ground that after passing the decree, the same was already executed in the sense the minor child was immediately handed over to the husband on 20 th October, 2008 which is also recorded in clause 1(a) of the consent terms dated 22 nd October, 2008 in terms of which, P.D.No.138 of 2008 for appointment as guardian and permanent custody of Joy was disposed off. 9] By judgment and order dated 11 th February, 2011, the learned Principal Judge of the Family Court-1, Pune returned the Petition No.PD.No.146 of 2008 to the wife by holding that the Family Court at 7 WP-5299-11.sxw Pune has no jurisdiction to entertain and try the petition. He further directed the wife to submit an application to the Family Court-1, Pune for fixing a date for appearance of the parties in the Court where she would file the petition and give notice of the said date to the husband. As far Regular Darkhast No.2 of 2011 is concerned, the same was dismissed on the ground that the custody of minor son Joy was handed over to the husband. Aggrieved by order dated 11 th February, 2011, the husband filed Writ Petition No.1886 of 2011 and by order dated 21 st March, 2011, he was permitted to withdraw that petition with liberty to file appropriate proceedings to protect interest of the petitioner. The husband also filed Writ Petition No.1894 of 2011 as his Darkhast was dismissed. The said petition is admitted by order dated 8 th April, 2011. The husband, thereafter, filed petition for habeas corpus being Cri.W.P.No.1001 of 2011. By order dated 20 th June, 2011, the said petition was rejected with liberty to the husband to adopt remedy available in law. 10] Subsequently, the wife instituted Misc. Application No.20 of 2011 under Section 34 of the Specific Relief Act, 1963 for declaration 8 WP-5299-11.sxw that the decree dated 22 nd October, 2008 passed in P.D.No.138 of 2008 be declared as null and void and not binding on the parties and for permanent custody of minor son Joy. She also filed application for interim relief on 25 th February, 2011 praying that she may be permitted to temporarily retain the custody of minor son Joy during the pendency of the petition. The husband filed application dated dated 1 st March, 2011 at exhibit 11 for rejecting the petition on the ground that the same is barred by law as per Order 7 Rule 11(d) as also for dismissal on the ground that the same is barred by principles of res judicata as per Section 11 of C.P.C. The wife resisted that application by filing reply on 7 th March, 2011. By the impugned judgment and order dated 26 th April, 2011, the learned Principal Judge of the Family Court No.1 rejected the application. It is against this order, the husband has filed this petition. 11] In support of this petition, Ms.Sarnaik submitted that the custody of minor son Joy can be sought only under Section 25 of the Guardians and Wards Act, 1890. The said issue has already been decided by the Family Court, Pune on 22 nd October, 2008. The 9 WP-5299-11.sxw present petition for custody of minor son Joy is, therefore, barred by principles of res judicata. She further contended that the wife nowhere claimed that the respondent played fraud on her and obtained decree by any unfair means. The decree passed in P.D. No. 138 of 2008 was a consent decree. The wife has only remedy i.e.to apply for the declaration of the decree to be non-est before this Court and the Family Court cannot decide the said issue, as the Family Court had already passed order on the issue of jurisdiction in P.D.No. 146 of 2010. She invited my attention to the following decisions :- (i) Zingu Deorao Umale Vs. Mahadeo Parshramji, AIR (35) 1948 Nagpur 358; (ii) Sailendra Narayan Bhanja Deo Vs. State of Orissa, AIR 1956 SCC 346; (iii) Katikara Chintamani Dora Vs. Guntreddi Annamanaidu, 1974 (1) SCC 567. 12] On the other hand, the learned counsel for the wife supported 10 WP-5299-11.sxw the impugned judgment and order. I have considered the rival submissions made by the learned counsel appearing for the parties. 13] It is not in dispute that the wife has filed Misc. Application No. 20 of 2011 under Section 34 of the Specific Reliefs Act, 1963 for declaration that the decree dated 22 nd October, 2008 passed in P.D.No.No.138 of 2008 be declared as null and void and not binding on the parties and for permanent custody of minor son Joy. In the petition, she alleged that the husband used to abuse her and her parents in filthy language as also threat of dire consequences. The husband had pressured her and her parents for handing over the custody of Joy and therefore, in order to avoid daily torture and pressure to the wife, she and her parents decided to succumb to the demands of the husband. During pendency of that petition, she had delivered custody of Joy to husband on 20 th October, 2008 totally against her wishes as the husband had extended tremendous amount of pressure on her. The wife was left with no option but to sign the document prepared by the husband and the petition was decreed on 22 nd October, 2008 11 WP-5299-11.sxw 14] Ms.Sarnaik submitted that the wife cannot pray for declaration that the consent decree passed by the Court of Jurisdiction is null and void unless the she alleges that it is obtained by fraud. The consent decree in the present case is a decree on merits as the Court had applied its mind before passing the decree and considered all the legal issues involved in it. The Court cannot nullify its own decree unless it is obtained by fraud. She, therefore, contended that the Misc. Application filed by the wife is barred by law. 15] She further submitted that one of the prayers in Misc. Application No.20 of 2011 is for permanent custody of minor son Joy. The said issue has already been decided in P.D.No.138 of 2008 on 22 nd October, 2008. Even, P.D. No.146 of 2010 filed by the wife was returned to her for filing it in the Court of proper jurisdiction. Since the issue has already been decided in P.D. No.146 of 2010 as also P.D. No.138 of 2008, the present Misc. Application is barred by principles of res judicata. 12 WP-5299-11.sxw 16] I do not find any substance in the submission made that the Misc. Application is liable to be rejected under Order 7 Rule 11(d) of C.P.C. Order 7 Rule 11(d) provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. It is settled principle that while considering the application under Order 7 Rule 11(d) of C.P.C., the Court has to take into account the averments made in the plaint and not the defence raised by the opposite party. Perusal of the plaint does not indicate that it is barred by any law. Ms.Sarnaik was unable to point out how said Misc. Application is barred by any law. The submission that unless fraud is played, decree cannot be set aside, does not mean that by itself the petition is barred by any law. Whether the wife has made a case for setting aside the consent decree dated 22 nd October, 2008 is a matter of evidence. But, it cannot be said that the said Misc. Application is barred by law on the ground that no case of fraud is made out. 17] In so far as the contention that Misc. Application is barred by principles of res judicata on the ground of decision dated 22 nd 13 WP-5299-11.sxw October, 2008 in P.D. No.138 of 2008 as also decision dated 11 th February, 2008 in P.D. No.146 of 2010 is concerned, the said contention is also without any merit. In so far as the decision dated 22 nd October, 2008 in Petition P.D. No.138 of 2008 is concerned, paragraphs 4 and 5 of the said judgment read as under: “4. The respondent is duly served. Both the parties were referred to the marriage counselor and they jointly filed the consent terms before marriage counselor. The respondent has agreed to give permanent custody and guardianship of minor son Joy to the petitioner. The petitioner has undertaken full financial responsibility of minor son. It has been agreed between the parties that the respondent shall be entitled to access, as per the consent terms. 5. The deposition of the petitioner and respondent is recorded at exh. 7 and 8, respectively. Both of them stated that they have jointly filed the 14 WP-5299-11.sxw consent terms before marriage counselor and both of them prayed for decree, as per consent terms. In view of the evidence led by both the parties, I hold that the petitioner is entitled to permanent custody and guardianship of minor son Joy...........” Perusal of paragraph 4 would indicate that after the wife was duly served, both parties were referred to the Marriage Counselor and they jointly filed consent terms before the Marriage Counselor. The wife agreed to permanent custody and guardianship of minor son Joy to the husband. The depositions of husband and wife were recorded at exhibits 7 and 8 respectively. Both of them stated that they have jointly signed the consent terms before the Marriage Counselor and both of them prayed for decree as per the consent terms. Thus, the decree dated 22 nd October, 2008 was passed in P.D.No.138 on the basis of compromise terms entered into between the parties. Even, during the course of evidence both of them prayed for passing decree in terms of the consent terms. It is in these circumstances, the question is whether P.D. No.138 of 2008 was decided on merits or 15 WP-5299-11.sxw not? 18] Ms.Sarnaik relied upon Order 23 Rule 3 of C.P.C. and contended that even when the Court passes the consent decree, it applies its mind and therefore, even if it is a consent decree, the decree is passed on merits. I do not find any substance in this submission. In my opinion, the decision dated 22 nd October, 2008 in P.D.No.138 of 2008 cannot be said to be on merits. The Court did not adjudicate the rights of the parties and the petition was disposed off in terms of the consent terms. In so far as submission based upon Section 11 of the C.P.C. is concerned, Section 11 provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. In the instant case, P.D.No.138 of 2008 was disposed of in terms of the compromise terms and consequently, it 16 WP-5299-11.sxw cannot be said that the said petition was heard and finally decided by the Court. It cannot be said that the said decision was on merits of the case by adjudicating rights of the parties. 19] In so far as the decision dated 11 th February, 2011 in P.D.No. 146 of 2010 is concerned, the said petition was returned to the wife on the ground of territorial jurisdiction. In paragraph 14 of the said order, the Court observed that Gurgaon Court will have jurisdiction over that petition and the Family Court, Pune will have no jurisdiction. It, therefore, can hardly be said that the present petition is hit by principles of res judicata on the basis of the judgment dated 11 th February, 2011 passed in P.D.No.146 of 2010. 20] The learned counsel for the petitioner relied upon the judgment in case of Zingu Deorao Umale (supra) to contend that the doctrine of res judicata applies not only to the actual decision in the case but also to the facts and grounds for that judgment pleaded by the parties. Anything which is admitted and which is fundamental to the decision of the earlier suit is also part of the res judicata created by 17 WP-5299-11.sxw the judgment. In my opinion, the said judgment is not applicable to the facts obtained in the present case as I have already held that the decision dated 22 nd October, 2008 in P.D.No.132 of 2008 is not on merits. 21] The learned counsel for the petitioner also relied upon the judgment of the Apex Court in the case of Sailendra (Supra) to contend that the judgment passed with the consent of the parties is as effective an estoppel between the parties as a judgment passed in a contested case. In that case, the plea of estoppel was sought to be founded on the compromise decree passed by the Patna High Court on 2 nd May, 1945 in First Appeal No.15 of 1941. The plaintiff instituted suit marked as original Suit No.1 of 1953 claiming as Raja and owner of the Rajgee against the State of Orissa praying for declaration that the Orissa Estates Abolition Act, 1951 was in its application to the Rajgee of Kanika, invalid, unconstitutional and ultra vires the State Legislature and for an injunction restraining the State of Orissa from taking any action under the said Act. On behalf of the State, it was contended that the plaintiff is estopped by the compromise decree 18 WP-5299-11.sxw passed by the Patna High Court on 2 nd May, 1945 in First Appeal No. 15 of 1941 from contending that his land is not estate within the meaning of above At. In that context, in paragraph 8 it was observed as under :- “(8) The plea of estoppel is sought to be founded on the compromise decree, Ex.`O’ passed by the Patna High Court on 2/05/1945, in F.A. No.15 of 1941. The compromise decree is utilised in the first place as creating an estoppel by judgment. In re.South American and Mexican Company, Ex parte Bank of England (1), it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. Upholding the judgment of Vaughan Williams, J., Lord Herschell said at page 50: The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. And I 19 WP-5299-11.sxw think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action. “ 22] In the instant case, the wife has instituted Misc. Application No. 20 of 2011 challenging the validity of the consent terms dated 22 nd October, 2008 passed in P.D. No.138 of 2008. The judgment in the case of Sailendra (supra), therefore, does not advance to the case of the petitioner. 23] Lastly, she relied upon the judgment of the Apex Court in the case of Katikara Chintamani Dora (supra) to contend that lawful compromise agreement is a consent decree and therefore, is not appealable. In the instant case, the wife has filed Misc. Application for setting aside the consent decree and has not filed Appeal challenging the said consent decree. In my opinion, the said 20 WP-5299-11.sxw judgment has absolutely no application to the facts of the present case. 24] In the result, the petition fails and the same is dismissed. Rule is discharged. In the circumstances of the case, there shall, however, be no order as to costs. [R.G.KETKAR, J.]