ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2381 OF 2008 PETITION NO.2381 OF 2008 PETITION NO.2381 OF 2008 Suhas Shrinivasrao Naik ...Petitioner Vs. Sujata Suhas Naik ...Respondent. Ms.Seema Sarnaik for the Petitioner. Mr.Ajit Kulkarni for the Respondent. CORAM CORAM CORAM : R.V.MORE, J. : R.V.MORE, J. : R.V.MORE, J. DATED DATED DATED : 22nd July, 2008 : 22nd July, 2008 : 22nd July, 2008. P.C. P.C. P.C. . Heard Ms.Seema Sarnaik, the learned counsel appearing for the Petitioner and Mr.Kulkarni, the learned counsel appearing for the Respondent. 2. By the impugned order, the Petitioner take exception to the order passed by the Judge, Family Court whereby his application under Order 7 Rule 11 of the Code of Civil Procedure came to be rejected. 3. The marriage between the parties to the Petition solemnized in the year 1988 and as the marriage did not work, both the parties filed a proceeding under Section 13-B of the Hindu Marriage Act on 06/10/2006, being proceeding No.383/2006. The family court ( 2 ) dissolved the marriage by mutual consent of the parties by an order dated 09/04/2007. The respondent wife subsequently filed the proceeding viz. P.B.No.51 of 2007 for setting aside the decree obtained under Section 13(B) of the Hindu Marriage Act-1955 on the ground that the same is obtained by practicing fraud and misrepresentation. In this proceeding the Petitioner filed an application under Order 7 Rule 11 of the C.P.C., challenging the maintainability of the said proceedings filed by the Respondent wife. The family Court by an order dated 21/02/2008 rejected the Petitioner’s application under Order 7 Rule 11 of the C.P.C. and hence the present Petition. 4. Ms.Seema Sarnaik, submits that in view of the provisions of Section 28 of the Hindu Marriage Act-1955, the decree passed under Section 13(B) can be challenged in the Appeal. She further submits that when remedy of appeal is provided under the statute, the separate application cannot lie to the same court for setting aside the decree under Section 13(B) in question. She further submits that Rule 3, Order 23 of the C.P.C. also bars a fresh suit for setting aside the decree which is based on compromise. ( 3 ) 5. Mr. Kulkarni, per contra relied upon the provisions of Section 19(2) of the Family Court Act and submitted that the Appeal will not lie against the decree obtained under Section 13(B). He supported the impugned order. 6. Having heard, the learned counsel appearing for the respective parties and having gone through the impugned order, I do not find any merit in the Petition. The Plain reading of Section 19 (2) of the Family Courts Act-1984 reveals that appeal is not maintainable against the decree if the same is obtained by the consent of the parties. 7. So far as the submission of Ms.Sarnaik that Respondent’s application based under Order 23 Rule 3 of the C.P.C. is concerned, the same is without any merit. Sub-Rule 3-A, Order 23 of the C.P.C. bars the fresh suit and not the application before the same Court. There is no bar for filing separate application to set aside the decree in question on the ground that the same is obtained by practicing fraud and misrepresentation. 8. The next submission of Ms. Sarnaik is that appeal ( 4 ) is provided under Section 28 of the Hindu Marriage Act and, therefore, no application will lie is concerned, the same also in my opinion is devoid of any substance. The Family Court in this regard rightly observed that merely because an appeal is provided that will not prohibit the Respondent from filing the Application challenging the decree on the ground of fraud or misrepresentation. 9. Be that as it may be. The main allegation of the Respondent seems to be that 13(B) decree is obtained by practicing fraud and misrepresentation. It is well settled that fraud it is not only required to be pleaded and proved by adducing independent evidence in that regard. The evidence of fraud cannot be adduced at the appellate stage but the same can easily be adduced before the original Court. In that view of the matter also, I do not find any merit in the submission of Ms. Sarnaik. The family court has approached the matter from correct point of view. I do not find any illegality or error in the impugned order, so as to enable me to interfere in my jurisdiction under Article 227 of Constitution of India. ( 5 ) 10. The Writ Petition is dismissed, accordingly. 11. At this stage, Ms.Sarnaik submits that this Court by an order dated 24/06/2008 in the Civil Application No.1151 of 2008 in Writ Petition No.2381/2008 recorded the statement of Respondent wife that during the pendency of this Petition, she will not enter the house at C-14, Himali Society, Erandwane, Pune. She requests that the effect of the statement be continued during the penedncy of the Respondents application viz. P.B. No. 51/2007. Mr.Kulkarni, the learned counsel appearing for the Respondent after taking instructions from his client states that the Respondent wife would not enter the above said house during the pendnecy of P.B.No.51/2008. The statement of the Respondent is accepted. ( R. V. MORE, J.) R. V. MORE, J.) R. V. MORE, J.)