Asha Devi vs Chaturdas and Another

Leave granted.

Heard learned counsel for the parties.

The appellant-wife has challenged the order passed by the High Court in which the divorce between the appellant and her husband was held to be void. The parties entered into a compromise and as per compromise the wife foregoes her right of maintenance instead to take the sons with her. The High Court held no divorce can be decreed based on compromise until it fall within four corners of law as required under the statute. Thus held such a compromise to be void. However, the High Court thereafter upheld another part of the compromise, namely, wife foregoes maintenance for taking the son with her.

We fail to understand, how a part of any compromise could be said to be valid when the compromise has been held to be void. Hence, the order of the High Court upholding the said part to be valid, cannot be sustained in the eyes of law. Accordingly, the impugned order to that extent is set aside. The effect is that both compromise and the part of compromise go. Thus there is no divorce based on the said compromise.

In view of the said findings, we also set aside the findings recorded by the Family Court rejecting appellant's application for maintenance. Now the family Court will proceed to decide afresh, the appellant's application for maintenance, after giving opportunity to the parties in accordance with law. Accordingly, appeal is allowed costs on the parties.