# Deepa Bajpai v. Dr. Ashish Mishra

- **Citation:** (2022) 6 ILRA 857
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-20
- **Case number:** First Appeal No. 104 of 2017
- **Bench:** Attau Rahman Masoodi, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepa-bajpai-v-dr-ashish-mishra-48871
- **Pages:** 9

## Headnote

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13-B - Divorce by mutual consent -
Coercion or fraud - Allegation of using force
and compulsion for signing the petition, how
far reliable - No FIR or complaint filed -
Application
containing
photograph
was
signed by wife and duly identified by her
counsel - Effect - Held, while passing the
impugned judgment, the court had inquired
with the parties to ascertain their free
consent/collusion and at that time also
appellant failed to narrate any fact of force
or coercion before the presiding officer -
Appellant has failed to prove that the
impugned
judgment
and
decree
was
obtained by playing any fraud or coercion
with appellant as well as with the trial court.
(Para 17 and 18)
B. Civil Law - Family Courts Act, 1984 -
Sections 19(1), 19 (2) & 20 - Civil Procedure
Code,1908 - Section 96(3) - O. 43 R. 1A -
Divorce by mutual consent - Maintainability
of Appeal against it - Applicability of
provision of CPC - Held, Family Court Act is
a special Act and according to Section 20,
the provisions of the Act have overriding
effect - Hence, the appeal against judgment
and decree u/s 13(B) is not maintainable.
(Para 20)
C. Civil Law - Civil Procedure Code,1908 - O.
23 R. 3A - Divorce by mutual consent -
Compromise decree - Maintainability of Suit
against it - Held, on the grounds of any
fraud, misrepresentation or coercion an
application to set aside the consented
decree is maintainable before the same
court which passed such order or decree -
No separate suit is maintainable - K. Rajam
Raju case relied upon. (Para 22)
D. Custody of minor child - Paramount
consideration - In the matter of custody of
minor, the paramount consideration for the
court to view is as to what is conducive to
the welfare of minor child - Held, for
welfare of her minor daughter, the appellant
always has a liberty to move application for
the custody of her minor daughter before
appropriate court. (Para 27)
Appeal dismissed (E-1)
List of Cases cited :-

## Text

6 All. Deepa Bajpai Vs. Dr. Ashish Mishra
857
The Family Court will forthwith pass a
decree of divorce in accordance with law.
----------
(2022)06ILR A857
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.05.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

First Appeal No. 104 of 2017
And
First Appeal No. 108 of 2017

Deepa Bajpai ...Appellant
Versus
Dr. Ashish Mishra ...Respondent

Counsel for the Appellant:
Sri Nilish Anand

Counsel for the Respondent:
Sri Anand Mani Tripathi, Sri Bhup Chandra
Singh, Saima Khan, Sri Vinay Kumar Dubey

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13-B - Divorce by mutual consent -
Coercion or fraud - Allegation of using force
and compulsion for signing the petition, how
far reliable - No FIR or complaint filed -
Application
containing
photograph
was
signed by wife and duly identified by her
counsel - Effect - Held, while passing the
impugned judgment, the court had inquired
with the parties to ascertain their free
consent/collusion and at that time also
appellant failed to narrate any fact of force
or coercion before the presiding officer -
Appellant has failed to prove that the
impugned
judgment
and
decree
was
obtained by playing any fraud or coercion
with appellant as well as with the trial court.
(Para 17 and 18)
B. Civil Law - Family Courts Act, 1984 -
Sections 19(1), 19 (2) & 20 - Civil Procedure
Code,1908 - Section 96(3) - O. 43 R. 1A -
Divorce by mutual consent - Maintainability
of Appeal against it - Applicability of
provision of CPC - Held, Family Court Act is
a special Act and according to Section 20,
the provisions of the Act have overriding
effect - Hence, the appeal against judgment
and decree u/s 13(B) is not maintainable.
(Para 20)
C. Civil Law - Civil Procedure Code,1908 - O.
23 R. 3A - Divorce by mutual consent -
Compromise decree - Maintainability of Suit
against it - Held, on the grounds of any
fraud, misrepresentation or coercion an
application to set aside the consented
decree is maintainable before the same
court which passed such order or decree -
No separate suit is maintainable - K. Rajam
Raju case relied upon. (Para 22)
D. Custody of minor child - Paramount
consideration - In the matter of custody of
minor, the paramount consideration for the
court to view is as to what is conducive to
the welfare of minor child - Held, for
welfare of her minor daughter, the appellant
always has a liberty to move application for
the custody of her minor daughter before
appropriate court. (Para 27)
Appeal dismissed (E-1)
List of Cases cited :-
1. Nathu Lal Vs Raghuvir Singh & ors. AIR 1926
Alld. 50
2. Smt. Sureshta Devi Vs Om Prakash (1991) 2
SCC 25
3. K.Rajam Raju & ors. Vs Smt. P.Rangamma &
ors. 2006 (4) ALD 61
4. Jamna Devi & ors. Vs Sarswati Devi & ors.
MANU/HP/1692/2018
5. Pushpa Devi Bhagat (D) through L.R. Smt.
Sadhna
Rai
Vs
Rajinder
Singh
&
ors.
MANU/SC/3016/2006
6. Rosy Jacob Vs Jacob A. Chakramakkal;
MANU/SC/0260/1973

(Delivered by Hon'ble Narendra Kumar
Johari, J.)
858 INDIAN LAW REPORTS ALLAHABAD SERIES

1. First Appeal No. 104 of 2017 (Deepa
Bajpai Vs. Dr. Ashish Mishra) under Section
19 (1) of the Family Courts Act, 1984 has
been filed against judgment and decree dated
15.05.2017, passed by Principal Judge, Family
Court, Lucknow in Regular Suit No.2799 of
2016 (Dr. Ashish Mishra Vs. Deepa Bajpai).

First Appeal No. 108 of 2017
(Deepa Bajpai Vs. Dr. Ashish Mishra) has
been filed against the order dated 10.07.2017,
passed by Principal Judge, Family Court,
Lucknow in Misc. Case No.Nil/2017, by
which the application filed by the appellant for
recall of the judgment/decree dated 15.05.2017
was rejected.

2. Since the facts and issue in both the
appeals are similar, parties are same, therefore,
both the appeals are being decided by the
common judgment.

3. The brief facts of the case as argued
before us are that the appellant Deepa Bajpai
got married with respondent Dr. Ashish
Mishra on 29.01.2015 at Lucknow observing
Hindu rites and rituals. In the marriage,
sufficient dowry including motor car and
jewelry were given by the parents of the
appellant but respondent and his family
members were not satisfied by the dowry
given and were continuously rebuking and
demanding additional dowry. The mother of
appellant was suffering from cancer and her
father was working on the post of Assistant
Accounts Officer in Defence Accounts
department who performed her marriage by
taking loan, that is why the parents of the
appellant were not in a position to fulfill the
demand of additional dowry, consequently, the
in-laws of the appellant started torturing her.

4. The appellant was performing her
duties as wife of respondent and never left
his company. On 11.02.2016, appellant
gave birth to a female child but the in-laws
were not happy, as the appellant gave birth
to a girl. The daughter of the appellant was
not a normal child, as she was having only
one Kidney in her body and her treatment
was
continuing
from
the
hospital
SGPGIMS, Lucknow. Since the demand of
additional dowry could not be fulfilled,
hence the in-laws of appellant were
continuously torturing and behaving badly
with her. They were intending to remarry
the respondent in greed of money and were
forcing the appellant to take divorce but the
appellant was not ready. Without the
consent
of
appellant,
the
respondent
prepared the papers for divorce on the basis
of mutual consent. On 20.10.2016, the
sister-in-law of appellant snatched her
daughter from the lap of appellant and by
giving threat of her life they forced the
appellant to sign the papers of divorce
petition in Court. Appellant appeared
before the Court but due to threat to the life
of her minor daughter, she could not speak
a single word before the Court concerned.
She had never signed any affidavit before
oath commissioner. The divorce petition
was instituted on 20.10.2016 and the next
date, after six months, was fixed as
13.05.2017. On 13.05.2017, the next date
given by the Court was 15.05.2017. On
15.05.2017 appellant along with respondent
appeared before the Family Court and she
was again forced to sign on some papers
already prepared.

5. The appellant was living in her
matrimonial home from 30.1.2015 till
10.06.2017. On 10.06.2017, the family
members of the in-laws expelled and turned
her out from her matrimonial home on the
pretext that the decree for her divorce had
been passed. Infact her in-laws had
threatened appellant for the life of her
minor daughter and she was compelled to
6 All. Deepa Bajpai Vs. Dr. Ashish Mishra
859
sign the pleading and affidavit with false
contention. The in-laws of the appellant
have also committed offence by rebuking
and torturing her in connection with
demand of additional dowry. The divorce
petition under Section 13-B of the Hindu
Marriage Act,1955 has been filed in the
Court with false contentions. It has wrongly
been mentioned in the divorce petition that
the parties have been living separately
since 10.09.2015. Hence, a fraud has been
committed with the appellant as well as
with the court concerned. Accordingly, the
consent which was given by the appellant
before the Principal Judge, Family Court,
was not free and had been obtained by
force, fraud and undue influence.

6. Learned counsel for the appellant has
further submitted that even the in-laws of the
appellant expelled her from her matrimonial
home. Immediately she approached to the
court concerned to obtain the certified copy
of the judgment and decree but her
application was rejected on the ground of
summer vacation. Immediately after summer
vacation, appellant moved an application
under Section 151 and under Order 47 Rule 1
of Code of Civil Procedure for recall and
cancellation of the aforesaid judgment and
decree but the application was rejected by the
Principal Judge, Family Court on 10.07.2017.
Thereafter, the instant appeal has been filed
with the prayer to set aside the judgment and
decree dated 15.05.2017. The minor daughter
of the appellant is a medically challenged
girl, who requires the custody and care of
appellant urgently, hence the impugned
judgment and decree be set-aside and appeal
deserves to be allowed.

7. Learned counsel for the respondent
vehemently opposed the arguments and
replied that the instant appeal, which has been
filed with false contention, according to law,
is not maintainable. The application under
Section 151 Code of Civil Procedure for
cancellation/review of the judgment dated
15.05.2017 has already been rejected by the
trial court vide order dated 10.07.2017. The
instant appeal is not permissible, according to
the provisions of Section 19 (2) of the Family
Court Act. Learned counsel for respondent by
referring the decision of this Court in the case
of Nathu Lal vs. Raghuvir Singh and other;
AIR 1926 Alld. 50 further submitted that for
the relief as prayed by appellant a suit for
declaration is maintainable.

8. We have heard the rival contentions
of the parties and perused the record.

9. Taking into consideration the
arguments of rival parties, the following
points of determination are being framed :

(i)
Whether
the
impugned
judgment and decree dated 15.05.2017, is
liable to be set-aside as the appellant was
under coercion and a fraud has been played
with appellant as well as with Court?

(ii) Whether the order dated
10.07.2017, passed by Principal Judge,
Family Court, Lucknow was bad in law and
is liable to be set aside, as prayed in Appeal
No.108 of 2017?

(iii)
Whether
the
impugned
judgment and decree which is based upon
mutual consent under Section 13B of
Hindu
Marriage
Act,
1955
can
be
challenged by way of appeal/suit?

(iv) Whether for the reasons to
grant custody of minor daughter, the appeal
deserves to be allowed?

10. So far as point (i & ii)) - Whether
the impugned judgment and decree is liable
860 INDIAN LAW REPORTS ALLAHABAD SERIES
to be set-aside as the appellant was under
coercion and a fraud has been played with
appellant as well as with Court and
Whether the order dated 10.07.2017,
passed by Principal Judge, Family Court,
Lucknow was bad in law and is liable to be
set aside, as prayed in Appeal No.108 of
2017, are concerned, the provisions of
Section 13B of Hindu Marriage Act, 1955,
is reproduced as under :-

"13B.
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 (68 of 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-section (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."

11. According to the above definition,
following ingredients are essential for
granting decree of divorce : -

(i) parties have been living
separately for a period of one year,

(ii) they have not been able to
live together.

(iii) they have mutually agreed
that the marriage should be dissolved.

12. The legislature in its wisdom has
consciously provided the waiting period
during which a decree for divorce by
mutual consent can be passed. The object
behind providing this period appears to
allow time to the spouses to reconsider
their decision and finally make up their
mind in the above period. It also appears
that in the interregnum period between
minimum and maximum, the spouse can
take legal recourse, if any force or fraud
has been played while instituting the
suit/proceedings under Section 13B of
Hindu Marriage Act, 1955. The enactment
also enables the court to satisfy itself that
the consent of spouse is free from any
extraneous influence or collusion. The
legislation has also cast a duty on court
under Section 23 of Hindu Marriage Act,
1955. Section 23 of Hindu Marriage Act,
1955, reads as under :-

"23. Decree in proceedings.- (1)
In any proceeding under this Act, whether
defended or not, if the court is satisfied that
-

(a) x x x x

(b) x x x x

(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
6 All. Deepa Bajpai Vs. Dr. Ashish Mishra
861

(c) x x x x

(d) x x x x

(e) x x x x"

13. It is depicted by the record of the
trial court that the application under
Section 13B of Hindu Marriage Act, 1955
was signed by the appellant who was
identified by her counsel Mr. Nischal Pal
Advocate. The application contains the
photograph of appellant with signature over
there also. The petition has been signed by
the appellant along with respondent on
20.10.2016.
Apart
from
that,
on
15.05.2017, appellant had signed the
affidavit which has been filed in the court
in support of the application under Section
13B of the Hindu Marriage Act, 1955.
Record also indicates that a memo of
appellant's address was also filed on
20.10.2016
before
the
Court
while
institution of petition. Learned counsel for
the appellant has submitted that both the
papers, i.e. divorce petition as well as
affidavits in evidence has been signed by
the appellant due to the reason that a threat
was given to her for the life of her minor
daughter.

14. Appellant is properly educated
and is a post graduate lady, as it has been
mentioned in paragraph 1 of the rejoinder
affidavit dated 30.05.2018. The petition as
well as the affidavit was drafted in Hindi.
Certainly the appellant would have gone
through the petition as well as the affidavit
before signing the aforesaid papers but she
did not raise any objection or complaint to
Presiding Officer of the Court while the
court was examining the parties in
accordance with Section 13B (2) of the
Hindu Marriage Act, 1955. Contrary to the
same no argument has been put before us.
Even no affidavit of her counsel has been
submitted by appellant.

15. It has also been argued that
petition for divorce was filed by the
respondent with false facts. It has wrongly
been mentioned in divorce petition that
parties
are
living
separately
from
10.09.2015. The appellant, as wife was
residing with respondent in her matrimonial
home till 10.06.2017, the date on which the
appellant was expelled from her

16. On the above point, appellant has
not filed any documentary evidence in
support of her argument regarding her
dwelling in her matrimonial home till
20.10.2016. Even, she failed to file any
paper of hospital where she gave birth of
her daughter, to show the address of
patient. The appellant has submitted her
memo of address before the proceeding of
trial court, showing a different address. She
has not explained the same in memo of
appeal. In paragraph 9 of Judgment Smt.
Sureshta Devi vs. Om Prakash (1991) 2
SCC 25, the Hon'ble Apex Court has held
that,

"9. The 'living separately' for a
period of one year should be immediately
preceding the presentation of the petition.
It is necessary that immediately preceding
the presentation of petition, the parties
must have been living separately. The
expression 'living separately', connotes to
our mind not living like husband and wife.
It has no reference to the place of living.
The parties may live under the same roof
by force of circumstances, and yet they may
not be living as husband and wife. The
parties may be living in different houses
and yet they could live as husband and
wife. What seems to be necessary is that
they have no desire to perform marital
862 INDIAN LAW REPORTS ALLAHABAD SERIES
obligations and with that mental attitude
they have been living separately for a
period of one year immediately preceding
the presentation of the petition. The second
requirement that they 'have not been able
to live together' seems to indicate the
concept of broken down marriage and it
would not be possible to reconcile
themselves. The third requirement is that
they have mutually agreed that the
marriage should be dissolved."

17. Nothing has been placed on
record to show that after 10th September,
2015, any conjugal relation was subsisting
between appellant and respondent. For the
argued fact that the in-laws of appellant
illegally forced her and under coercion the
appellant had signed the petition as well as
the affidavit in court campus and to compel
her, her medically challenged daughter had
been snatched from her lap, the appellant
even after 10.06.2017, has not lodged any
F.I.R./complaint
before
any
authorities/court.
Paragraph
2
of
the
impugned judgment is reproduced as under
:-

"i{kdkjksa dks lquus rFkk muds
'kiFk&i= ds voyksdu ls ;g ik;k tkrk gS fd
muds e/; fookg lEiUu gqvk Fkk vkSj ;kfpdk esa
dgs x;s rF; lR; izrhr gksrs gSA i{kdkjksa ds
e/; vkil esa dksbZ nqjfHk&laf/k izrhr ugha gksrh
gSA i{kdkj yxHkx ,d lky ls vf/kd le; ls
vyx&vyx jg jgs gSaA vr,oa mHk; i{kksa dh
ikjLifjd lgefr ds vk/kkj ij muds e/;
lEiUUk gq, fookg ds lEcU/k esa fookg foPNsn dh
fMdzh ikfjr fd;k tkuk mfpr gksxkA"

Hence, it is apparent that while
passing the impugned judgment, the court
had inquired with the parties to ascertain
their free consent/collusion and at that time
also appellant failed to narrate any fact of
force or coercion before the presiding
officer or her counsel. Even during the
pendency of appeal appellant could have
not submitted any cogent evidence which
may establish that she was subjected to any
undue influence or coercion during the
proceedings of trial court, although she had
filed the affidavits of Yagya Prasad Bajpai
(father of appellant), Ankit Bajpai (brother
of appellant) and Lalit Mohan Pandey
(brother-in-law of Deepa's father) under
Order 41 Rule 27 of Code of Civil
Procedure but the deponent of the affidavits
are none other than the family members
and close relatives of the appellant.
According to Section 1 of Evidence Act
affidavits are not recognized as evidence.

18. On the basis of above facts and
circumstances, it can be said that appellant
has failed to prove that the impugned
judgment and decree was obtained by
playing any fraud or coercion with
appellant as well as with the trial court. No
evidence has been produced by the
appellant before the Family Court in the
proceedings under Section 151 and Order
47 Rule 1 Code of Civil Procedure.
Accordingly, the first and second points of
determination are decided in negative.

19. Point of determination No. (iii) -
Whether the impugned judgment and
decree, which is based upon mutual consent
under Section 13(B) of Hindu Marriage
Act, can be challenged by way of
appeal/suit: appeal, filed u/s 19(1) of
Family Courts Act, whereas, Section 19 (2)
of the Act prohibits the maintainability of
such appeal. The provision of Section 19
(2) reads as under :-

"19. Appeal.- (1) x x x x x

(2) No appeal shall lie from a
decree or order passed by the Family Court
6 All. Deepa Bajpai Vs. Dr. Ashish Mishra
863
with the consent of the parties or from an
order passed under Chapter IX of the Code
of Criminal Procedure, 1973 (2 of 1974):

Provided that nothing in this subsection shall apply to any appeal pending
before a High Court or any order passed
under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974) before the
commencement of the Family Courts
(Amendment) Act, 1991.

(3) x x x

(4) x x x

(5) x x x

(6) x x x

20. Learned counsel for the appellant
has argued that according to the provisions of
Order 43 Rule 1A of the Code of Civil
Procedure, the impugned decree can be
challenged. The provisions of order 43 Rule
1A of the Code of Civil Procedure, is
reproduced as under :-

"1A. Right to challenge nonappealable
orders
in
appeal
against
decrees.- (1) Where any order is made under
this Code against a party and thereupon any
judgment is pronounced against such party
and a decree is drawn up, such party may, in
an appeal against the decree, contend that
such order should not have been made and
the
judgment
should
not
have
been
pronounced.

(2) In an appeal against a decree
passed in a suit after recording a compromise
or refusing to record a compromise, it shall
be open to the appellant to contest the decree
on the ground that the compromise should, or
should not, have been recorded."

So far as the appeal from original
decree is concerned, Section 96 (3) C.P.C.
bars appeal against consent decree. Section
96 (3) C.P.C. reads as under :-

"96.Appeal from original decree.-
(1) x x x x x

(2) x x x x

(3) No appeal shall lie from a
decree passed by the Court with the consent
of parties.

(4) x x x x "

However, appellant cannot get any
relief by way of filing appeal under Order
XLI Rule 1A of the Code of Civil Procedure,
as the Family Court Act is a special Act and
according to Section 20 of the Family Court
Act, the provisions of the Act have overriding
effect. Section 20 of the Family Courts Act,
reads as under : -

"20. Act to have overriding
effect.-The provisions of this Act shall have
effect
notwithstanding
anything
inconsistent therewith contained in any
other law for the time being in force or in
any instrument having effect by virtue of
any law other than this Act."

Hence in accordance with law
cited above the appeal against judgment
and decree u/s 13(B) is not maintainable.

21. Appellant cannot challenge the
above judgment and decree by way of suit
also. The barring provision is inacted under
Order 23 Rule 3A of the Code of Civil
Procedure, which reads as under :-

"3A.Bar to suit.- No suit shall lie
to set aside a decree on the ground that the
864 INDIAN LAW REPORTS ALLAHABAD SERIES
compromise on which the decree is based
was not lawful."

22. In the case of K.Rajam Raju and
others Vs. Smt. P.Rangamma and others,
2006 (4) ALD 61, it has been held by
Andhra Pradesh High Court that on the
grounds of any fraud, misrepresentation or
coercion an application to set aside the
consented decree is maintainable before the
same court which passed such order or
decree. No separate suit is maintainable.

23. The Himachal Pradesh High Court
in the case of Jamna Devi and others Vs.
Sarswati
Devi
and
others
:
MANU/HP/1692/2018, referring the law
laid down in the case of Pushpa Devi
Bhagat (D) through L.R. Smt. Sadhna Rai
Vs.
Rajinder
Singh
and
others,
MANU/SC/3016/2006,
has
held
in
paragraph 13 as under :-

"13.
Bearing
in
mind
the
aforesaid
exposition
of
law,
more
particularly, the observations made in para
- 10 of the aforesaid judgment, it is
evidently clear that all questions with
regard to lawfulness validity of the
agreement or compromise as being void or
voidable or where the compromise, in
question, having been obtained by a fraud,
duress, coercion etc., the same has to be
raised before that Court which passed the
decree on the basis of any such agreement
or compromise. The Court cannot direct
the parties to file a separate suit on the
subject or no such suit will lie in view of
the provisions of Order 23 Rule 3-A CPC"

24. Learned counsel for the appellant
has argued that after getting the knowledge
of divorce decree, appellant approached the
trial court under the provisions of Order 47
Rule 1 and Section 151 of C.P.C. for recall
of judgment and decree dated 15.05.2017
but the application of the appellant was
rejected by the Principal Judge, Family
Court vide order dated 10.07.2017. The
rejection order for the reasons recorded by
the Family Court, and in absence of any
ground made out within the scope of Order
47 Rule 1 read with Section 151 of C.P.C.
was rightly rejected. Therefore, in the light
of the above discussion, the above third
point of determination is decided in
negative. The appellant cannot challenge
the impugned judgment and decree by way
of present appeal/civil suit.

25. Point of determination No. (iv) -
Whether for the reasons to grant custody of
her minor daughter, the appeal deserves to
be allowed.

26. Learned counsel for the appellant
has submitted that the judgment and decree
for divorce has been obtained by the
respondent by use of force and by
committing fraud and under coercion to
sign the petition for divorce as well as
affidavit in trial court. The daughter of
appellant is medically challenged. She has
only one kidney in her body and requires
special care and protection. On the other
hand, respondent is a bank employee and is
intending to remarry, therefore, considering
the welfare of minor child, it is utmost
needed that the daughter of appellant
named, Gauri, be given under the custody
of her mother and on the above ground the
appeal deserves to be allowed.

27. In paragraph 11 of the petition
under Section 13B of the Act, the appellant
had given her consent to keep her daughter
in the custody of respondent. So far as the
custody
of
minor
is
concerned,
undoubtedly, her welfare is supreme and
the court has ample power to safeguard the
6 All. Moti Lal & Ors. Vs. The New India Insurance Co. Ltd. & Ors.
865
interest of minor. In catena of judgments, it
has been held by Hon'ble Supreme Court
that in the matter of custody of minor, the
paramount consideration for the court to
view is as to what is conducive to the
welfare of minor child. In the case of Rosy
Jacob
Vs.
Jacob
A.
Chakramakkal
MANU/SC/0260/1973, it has been held by
Hon'ble Supreme Court in paragraph 20
that,

"20.The
appellant's
argument
based on estoppel and on the orders made
by the court under the Indian Divorce Act
with respect to the custody of the children
did not appeal to us.

All orders relating to the custody
of the minor wards from their very nature
must be considered to be temporary orders
made in the existing circumstances. With
the changed conditions and circumstances,
including the passage of time, the Court is
entitled to vary such orders if such
variation is considered to be in the interest
of the welfare of the wards. It is
unnecessary to refer to some of the decided
cases relating to estoppel based on consent
decrees, cited at the bar. Orders relating to
custody of wards even when based on
consent are liable to be varied by the Court,
if the welfare of the wards demands
variation."

In view of above, in changed
scenario and for welfare of her minor
daughter, the appellant always has a liberty
to move application for the custody of her
minor daughter before appropriate court.
The third point of determination is decided
accordingly.

28. Under the facts and circumstances
of the case, material available on record,
we are of the considered view that the
present appeal as well as the connected
First Appeal No.108 of 2017 being bereft
of merit are liable to be dismissed.

29. Accordingly, the first appeals are
dismissed.

30. Cost is made easy.

31. Let a copy of the judgment/order
be kept in the record of First Appeal
No.108 of 2017.
----------
(2022)06ILR A865
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 990 of 2010

Moti Lal & Ors. ...Appellants
Versus
The New India Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Ranjay Kumar, Sri Ashutosh Srivastava,
Sri Satyendra Narayan Singh

Counsel for the Respondents:
Sri Aijaz Ahmad Khan

A. Civil Law - Motor Vehicles Act, 1988 -
Sections 166 & 168 - Motor Accident claim
- Quantum of compensation - Income -
Income tax return - Claimants filed copy
of income tax return of the deceased
pertaining to the financial year 2005-06 -
Tribunal refused to rely on the annual
income of the deceased on the basis of
income tax return on the ground that
registration certificate of business and
details of account showing the income of