IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN WEDNESDAY, THE4H DAY OF SEPTEMBER201313TH BHADRA, 1935 OP (FC).No. 2651 of 2013 (R) ----------------------------- AGAINST THE ORDER
/JUDGMENT
IN IA5752013 of FAMILY COURT, IRINJALAKUDA PETITIONER(S): -------------------------- PRAVEEN AGED28YEARS S/O. KADALIKKATTIL PREMADASAN, AVITTATHUR DESOM KADUPPASSERY VILLAGE, MUKUNDAPURAM TALUK THRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): ---------------------------- SUKANYA, AGED20YEARS D/O. KANATTIL SAHADEVAN, KOTTENELLUR VILLAGE PATTEPADAM DESOM, MUKUNDAPURAM TALUK, PIN-680672. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON0409- 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 2651 of 2013 (R) ----------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1. TRUE COPY OF TGHE JOINT PETITION FILED UNDER SECTION13 OF THE HINDU MARRIAGE ACT BEFORE THE FAMILY COURT. P2. TRUE COPY OF THE PETITION I.A. 575/2013 FILED UNDER SECTION14OF THE HINDU MARRIAGE ACT DT014/13. P3. TRUE COPY OF THE ORDER
DATED14-2013 IN IA5752013 OF THE FAMILY COURT AT IRINJALAKUDA. RESPONDENT(S)' EXHIBITS NIL --------------------------------------- //True Copy// PA TO JUDGE Rp ANTONY DOMINIC & P.D.RAJAN, JJ.
======================== O.P(FC) No. 2651 OF2013================== Dated this the 4th day of September, 2013
JUDGMENT
Antony Dominic, J.
Petitioner married the respondent on 17/3/13 at Kallarakad Vana Durga Temple. They separated on 19/3/13 and in April 2013, they filed Ext.P1 petition under Section 13B of the Hindu Marriage Act before the Family Court, Irinjalakuda for divorce on mutual consent. Along with Ext.P1, petitioner also filed Ext.P2, IA No.575/13, praying for an order as provided under the proviso to Section 14(1) of the Hindu Marriage Act permitting him to present the application before the expiry of one year. The Family Court considered the IA and passed Ext.P3 order dismissing the same holding that no exceptional circumstances have been made out. It is in these circumstances, this OP is filed seeking to challenge Ext.P3 order passed by the Family Court dismissing IA No.575/13 and to direct the Family Court to proceed with Ext.P1 petition under Section 13B of the Act.
2. On the filing of the OP, by order dated 1/8/2013, notice by speed post was ordered to the respondent. Although notice OP(FC) No.2651/13 :
2. : has been served, there is no appearance or representation on behalf of the respondent. In such circumstances, we proceeded to hear the learned counsel for the petitioner and have considered the submissions made.
3. Section 14(1) and the proviso thereof of the Hindu Marriage Act, 1955 reads thus; 14. No petition for divorce to be presented within one year of marriage. (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage: Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed. OP(FC) No.2651/13 :
3. :
4. Reading of the above provision shows that under Section 14(1), it shall not be competent for a Family Court to entertain a petition for dissolution of a marriage unless at the date of the presentation of the petition, one year has elapsed since the date of the marriage. However, proviso to Section 14(1) relaxes the rigor thus created by Section 14(1) and enables consideration of applications for dissolution of marriage presented before the expiry of one year since the date of marriage, provided the case is proved to be one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. The proviso further contains a rider that if it appears to the Court at the hearing of the main petition that the petitioner obtained leave as provided under the proviso to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may even dismiss the petition without prejudice to the right of the parties to approach the Court on the expiry of the one year period prescribed under Section 14(1). OP(FC) No.2651/13 :
4. :
5. Thus, from the scheme of the proviso to Section 14(1), it is obvious that the Family Court is empowered to grant leave to present a petition before expiry of one year provided the petitioner establishes that the case is one of exceptional hardship to him or exceptional depravity on the part of the respondent.
6. Having thus understood the scope of this provision, we have to now look at the facts of this case. Admittedly, Ext.P1 petition has been presented by both parties invoking the power of the Family Court as provided under Section 13B of the Hindu Marriage Act. The averments in Ext.P1 itself would show that they got married on 17/3/13 and that on the night of 17/3/13 itself, the respondent refused to even interact with the petitioner. It is also stated that on enquiry, it was revealed that she was already in love with another person and that she had decided to live only with him. It is also stated that she herself had told the petitioner that she cannot live with him. It is further stated that the parties have not lived together and the marriage was not consummated.
7. The facts of the case being as above, no purpose of any nature will be served by insisting that the parties should have waited for the one year as provided under Section 14(1) and in OP(FC) No.2651/13 :
5. : our view, such a requirement would cause exceptional hardship to the parties concerned. Therefore, the view taken by the Family Court that the petitioner has failed to make out a case of exceptional hardship as provided under the proviso to Section 14 (1) of the Act is untenable.
8. For the aforesaid reasons, the order passed by the Family Court, Irinjalakuda dismissing IA No.575/13 is set aside. The IA will stand allowed. The Family Court will proceed with Ext.P1 petition filed under Section 13B of the Hindu Marriage Act and dispose of the same in accordance with law. OP is disposed of as above. Sd/- ANTONY DOMINIC, Judge Sd/- P.D.RAJAN, Judge Rp //True Copy// PA TO JUDGE