Full Judgment
J
IN THE HIGH COURT OF KERAIA AT ERNAKULZD4
PRESENT THE HONOURABLE MR. JUSTICE ANIIi K.NARENDRAN & THE HONou RABLE MR.4us TICE p.G. ATITHKubmR MONDAY, THE 3o TH DAY oF d:ENunR¥ 2o23 / 1o TH RAGHA, 1944 mT.App EAI, No. 879 oF 2014 AGAINST THE ORDER DATED 11.08.2014 IN 0.P.NO.525 0F 2013 0N THE FILE OF THE FAMILY COURT, THRISSUR APPEIIILANT/PETITIONER:
VITAYAN PIIIIA, AGED 49 YEARS, S/0. TEIANKAPPAN HAIR, VITAYA SADANAM, CHERIYENAD , TEIEKKUMURIYII. , CHERIYANAD VILIAGE , CHENGZINNUR TALUK, AIAPPUZEIA DISTRICT. 8¥ anvs. SRI . I . G . GORDEN SRI.S.K.KRIS AKUMAR SRI . 00REN GEORGE RESPONDENT/RESPONDENT: ANITHA, AGED 45 YEARS, D/O. VASUDEVAN HAIR, VRINDAVANAM, KALAYIKKAII THEKKETHIII VEETIL , ENCHERY BESOM, OLLUR VIIi IAGE, THRISSUR TAI.UK, THRISSUR -680 006. BY ADVS. SRI. P. SANTHOSH (PODUVAli) SRI . K .I) . SREEVISAKII THIS RATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING 0N 30.01.2023, THE COURT 0N THE SAME DAY DELIVERED THE FOLLOWING : Mat.Appeal No.879 of 2014
JUDGMENT
Anil K. Narendran, J, The appellant filed O.P.No.525 of 2013 on the file of the Family Court, Thrissur, which was one filed under Sections 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, seeking a decree of dissolution of marriage solemnized between the appellant-husband and the respondent-wife on 22.10.1995. That original petition ended in dismissal by judgment and decree dated 11.08.2014. Feeling aggrieved, the appellant has filed this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984.
2. On 16.10.2014, when this appeal came up for admission, this Court issued notice to the respondent.
3. On 03.11.2022, when this appeal came up for
consideration, in order to explore the possibility of settlement by mediation, both the parties were directed to appear before the Ernakulam Mediation Centre, in the premises of this Court, on 15.11.2022 at 10.15 a.in.
4. The parties have settled the entire disputes in
mediation and a memorandum of settlement dated 20.01.2023 is placed on record along with the report dated 20.01.2023 of -?. Mat.Appeal No.879 of 2014 the Mediator. In the mediation, the parties have agreed to file a joint petition in this appeal, under Section 138 of the Hindu Marriage Act, for dissolution of marriage between them on mutual consent.
5. On 23.01.2023, when this appeal came up for
consideration, the learned counsel for the appellant submitted that, since the parties have settled the disputes in mediation, this appeal may be allowed, granting a decree of divorce, under Sections 13(1)(ia) and (ib) of the Hindu Marriage Act, on the ground of cruelty and desertion, as sought for in O.P.No.525 of
2013. We have dealt with that submission in the order dated 23.01.2023. Paragraphs 5 to 7 of that order read thus; ``5. Section 23 of the Hindu Marriage Act deals with
decree in proceedings under the said Act. As per sub- section (1) of Section 23, in any proceedings under the Act, whether defended or not, if the court is satisfied that
(a) anv of the Grounds for c]rantina relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause
(b) or sub-clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and (b) where the
ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned ca Mat.Appeal No,879 of 2014 the act or acts complained of, or where the ground of the
petition is cruelty the petitioner has not in any manner condoned the cruelty, and (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 (c) the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or improper delay in instituting the proceedings, and (e) there is no other legal grounds why relief should not be granted,
then, and in such a case, but not otherwise, the court shall decree such relief accordingly. Therefore, a decree of divorce cannot be granted by accepting by the proof affidavit filed by the petitioner, without recording the satisfaction of the court as per the mandate of sub-section
(1) of Section 23.
6. In such circumstances, merely for the reason that the
parties have settled the disputes in mediation, no decree of divorce can be passed under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, without this Court recording its satisfaction that the grounds for granting such a decree of divorce exist. Therefore, the parties have to file a joint petition seeking a decree of divorce on mutual consent, invoking the provisions under Section 138 of the aforesaid Act in terms of memorandum dated 20.01.2023.
7. The learned counsel on both sides would submit that the parties shall file a I.oint petition for a decree of divorce on mutual consent, within two days."
6. Today (30.01.2023), the parties have filed a joint
petition under Section 138 of the Hindu Marriage Act as I.A.No.1 c2- Mat.Appeal No.879 of 2014 of 2023 seeking a decree of divorce to dissolve the marriage solemnised between them on 22.10.1995 at Cheriyanad Sree Balasubramaniya Swami Temple, on mutual consent. They have also filed I.A.No.2 of 2023 under Section 138(2) of the said Act, seeking an order to waive the colling period of six months in considering the application for divorce on mutual consent. 7[ The Apex Court in Amardeep Singh v. Harveen Kaur [2017 (8) SCC 746] considered whether it is mandatory in all cases to wait for the statutory period under Section 138(2) of the Act before allowing divorce on mutual consent. It was
held that the provision was discretionary and not mandatory.
The Apex Court held that the period can be waived if the Court is satisfied after considering the following: "i) the statutory period of six months specified in Section
138(2), in addition to the statutory period of one year under Section 138(1) of separation of parties is already over before the first motion itself; ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending
issues between the parties;
c2L, Mat.Appeal No.879 of 2014 iv) the waiting period will only prolong their agony."
8. Today, we have interacted with the parties
individually. They have stated in categorical terms that the entire disputes between them have already been settled, and they have consented for a decree of divorce by mutual consent. The appellant and the respondent are living separately for the last 26 years. Since the parties have genuinely settled their disputes in mediation and since they are living separately for the last 26 years, we find that the cooling period of six .months provided under Section 138(2) of the Act will only prolong their agony. Therefore, we are satisfied that this is a fit case in which without waiting for the statutory period of six months under Section 138(2) of the Act, the parties can be granted a decree of divorce by mutual consent. In such circumstances, I.A.No.2 of 2023 is allowed by waiving the statutory period of six months provided under Section 138(2) of the Act and I.A.No.1 of 2023 is allowed by granting a decree of divorce by mutual consent under Section 138 of the Act, by dissolving the marriage solemnised between the appellant-husband and respondent- wife on 22.10.1995 at Cheriyanad Sree Balasubramaniya Swami Temple. c2Mat.Appeal No.879 of 2014 In the above circumstances, this appeal is disposed of in terms of the terms and conditions contained in the memorandum of settlement agreement dated 20.01.2023, which shall form part of this judgment. In view of the order in I.A.No.1 of 2023, the marriage solemnised between the appellant-husband and respondent-wife on 22.10.1995 at Cheriyanad Sree Balasubramaniya Swami Temple is dissolved by mutual consent under Section 138 of the Hindu Marriage Act. Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM Mat.ADDeal No. 879 of 2014 ViJ'iyan Pillai Appellant Vs Anitha Respondent ® M_:i:#[:Dp:Moc°EFD:#:LMDENWTr TUHNR::ESsE=[:N2589o:::FE# PROCEDURE (AITERNATIVE DISPUTE REs OLUTIOI\l). RULES. 2008. Both parties agree to settle their case amicably in the following terms and conditions :
1. Appellant has agreed to pay an amount of Rs.10,00,000/-
(Rupees Ten Lakhs only) to the Respondent as full and final settlement of the claim of the Respondent, He further agreed that he shall pay an amount of Rs.10,00,000/- (Rupees Ten Lakhs only) to his daughter, Mrs.Akhila V Pillai. Accordingly the Appellant herein has handed over Demand Draft No.002310 for Rs.10,00,000/-(Rupees Ten Lakhs only) dated 17/01/2023 issued by Indian Bank, Chengannur Branch to the Respondent and the same is accepted by her.
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Further, the Appellant herein has handed over Demand Draft No.002309 for Rs.10,00,000/-(Rupees Ten Lakhs only) dated 17/01/2023 issued by Indian Bank, Chengannur Branch to his daughter, Akhila V Pillai, who is present today at High Court Mediation Centre, and she accepted the same for the settlement claim in OP.No.2470/2019 pending before Family Court, Thrissur.
2. Appellant and Respondent herein have agreed to file petition for dissolution of marriage between them on mutual consent before this Hon.ble Court, on or before 31/01/2023.
3. Respondent herein has agreed to withdraw OP.No.2470/2019, EP.No.56/22 in OP.No.485/2017 which are
pending consideration before Family Court, Thrissur. Respondent further undertakes that she shall not claim any property, movable or immovable, belongs to Appellant in futu re . 1 . Vprgr fl./tt R"#tyJ t`#`,A . `P^ . -3- ln default of compliance of any conditions above mentioned, the appellant has the liberty to move appropriate petitions before the court of Law. Dated this the 20th day of January, 2023. -,?,-I,`:T'Ji Respondent Vijiyan Pillai Anitha Rrdy. hoa`DErd Counsel for the Appellant es Aha. Sarfus\ P +PodrwlJ (A/\3q4`qq) Counsel for the Respondent