Can the party treat decree as void if there is gross violation in passing of such a decree. I am a doctor employed in a central government instrumentality. I fell in love with a medical representative, finally we decided to marry. After three years of marriage, we sought divorce by mutual consent. After obtaining decree of divorce, we were living apart for few months but later we have been living together. Now we have decided to get a child. There is no problem between us and decree was sought just after the objection raised by the husband’s family. I belong to SC category and my husband belongs to General category. He wanted to settle the dispute with his family, so we filed divorce petition. Now we are living in a live-in relationship. For our point of view that decree is void because we love each other and carried on our marital relationship even after the decree of divorce. My husband says that our divorce is not effective because we are living as a spouse. But I want to know whether the party can treat decree as void if it was obtained by the collusion of the parties.
Asked from: Tamil Nadu
A decree passed by a competent court, even if it is void in law, remains valid unless and until it is set aside by a competent court. A void or voidable order is generally not considered non est (nonexistent) because the court did not err in its jurisdiction when passing the decree. In M. Meenakshi v. Metadin Agarwal, (2006) 7 SCC 470, the Supreme Court has held that:
It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another.
The same principle was reiterated by the Supreme Court in Sultan Sadik v. Sanjay Raj Subba, (2004) 2 SCC 377, where it was declared that a void decree must be formally declared void by a competent court.
From these rulings, it is clear that even if a decree is void ab initio (from the beginning), the aggrieved party must obtain a declaration to that effect from a competent court. Such a declaration cannot be sought in collateral proceedings.
The court is not obligated to grant a decree of divorce merely because a suit for mutual consent divorce has been jointly filed by the spouses. In such cases, the court must be satisfied that mutual consent exists between the parties, based on tangible evidence that clearly demonstrates such consent. (See Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234).
You cannot widraw your consent after getting decree of divorce. That decree is binding upon you because you have proved that you both are agreed to live separately. Since you have been living together after that decree, your conduct will not automatically render that decree void.
In these situations, you have to set aside that decree by a competent court. It is settled principle of law that parties to the suit cannot treat divorce decree as ineffective if they continue to live together as husband and wife.
Hence, party cannot treat decree as void. In these circumstances you have to file an appeal for setting aside that decree because there was no free consent of wife and both parties have been living together after passing of divorce decree.
Also read: Impotency a ground of divorce