Archana P.K. v. Deepesh O.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022/2ND AGRAHAYANA, 1944 ``` ``` MAT.APPEAL NO. 108OF 2019 ``` ``` AGAINST THE ORDER DTD.12.10.2018 IN OP.NO.205 OF 2017 OF FAMILY COURT, KOZHIKODE ``` ``` APPELLANT/S: ``` ``` ARCHANA.P.K., AGED 21 YEARS DAUGHTER OF CHANDRAN PARAPPURATHU, SREEKOVIL, EDAVALATHU PARAMBU, MALAPARAMBU P.O., KOZHIKODE- 673009. ``` ``` BY ADV K.A.SALIL NARAYANAN ``` ``` RESPONDENT/S: ``` ``` DEEPESH O., AGED 29 YEARS SON OF MOHANAN K.P., OTTAKKANDATHIL VEEDU, K.P.NIVAS, MALAPARAMBU P.O., KOZHIKODE- 673009. ``` ``` BY ADVS. SRI.E.G.GORDEN SRI.S.K.KRISHNAKUMAR ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 MAT.APPEAL NO. 108 OF 2019 ## **JUDGMENT** Anil K. Narendran, J. The appellant filed O.P.No.205 of 2017 on the file of the Family Court, Kozhikode, against the respondent herein to declare that the marriage solemnized between them on 15.11.2013 is null and void. That original petition ended in dismissal by the judgment and decree dated 12.10.2018. Feeling aggrieved, the appellant filed this appeal invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 2. On 13.02.2019 when this came up for admission, this Court admitted the matter on file and notice was issued to the respondent through speed post. 3. On 06.12.2022, when this appeal came up for consideration, the parties were directed to appear before this Court on 12.12.2019, in order to explore the possibility of settlement by way of mediation. On 12.12.2019, the learned counsel for the respondent submitted that the respondent is laid up and hence he could not appear before this Court. Hence the matter was adjourned to 08.01.2020 for appearance of the parties. On 08.01.2020 also, the respondent was absent and he 3 MAT.APPEAL NO. 108 OF 2019 was directed to pay a cost of Rs.20,000/- to the appellant. On 09.11.2022 when this matter is taken up for consideration, both parties were referred for mediation before the Nodal Officer, Ernakulam Mediation Centre, in the premises of this Court. 4. Now the parties have settled the disputes in mediation and the memorandum of settlement agreement dated 18.11.2022 executed between the parties is placed on record along with the report of the Mediator, which is one dated 18.11.2022. In terms of that settlement, the parties have filed I.A.No.1 of 2022 an application under Section 13B of the Hindu Marriage Act, seeking a decree of divorce on mutual consent, along with I.A.No.2 of 2022, an application to waive the statutory period prescribed under Section 13B(2) of the Act. 5. Heard the learned counsel for the appellant-wife and the learned counsel for the respondent-husband. 6. 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 13B(2) of the Act before allowing divorce on mutual consent. It was held that the provision was discretionary and not mandatory. The Apex 4 MAT.APPEAL NO. 108 OF 2019 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 13B(2), in addition to the statutory period of one year under Section 13B(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; iv) the waiting period will only prolong their agony.' 7. Today, when this matter is taken up for consideration, we have interacted with the appellant-wife and the respondent- husband. 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-wife and the respondent-husband are living separately for the past many years. Since the parties have genuinely settled their disputes in mediation and since they are living separately for the past many years, we find that the cooling period of six months 5 ## MAT.APPEAL NO. 108 OF 2019 provided under Section 13B(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 13B(2) of the Act, the parties can be granted a decree of divorce by mutual consent. In such circumstances, I.A.No.2 of 2022 is allowed by waiving the statutory period of six months provided under Section 13B(2) of the Act and I.A.No.1 of 2022 is allowed by granting a decree of divorce by mutual consent under Section 13B of the Act, by dissolving the marriage solemnized between the appellant-wife and respondent-husband on 15.11.2013 at Aryasamajam, Kozhikode. 8. In the above circumstances, the appeal is disposed of in terms of the terms and conditions contained in the memorandum of agreement dated 18.11.2022, which shall form part of this judgment. In view of the order in I.A.No.1 of 2022, the marriage between the appellant-wife and the respondent-husband solemnized on 15.11.2013 at Aryasamajam, Kozhikode is dissolved by mutual consent, under Section 13B of the Act. Since the judgment and decree of the Family Court, Kozhikode in O.P.No.205 of 2017 is set aside, the Family Court 6 MAT.APPEAL NO. 108 OF 2019 shall communicate a copy of this judgment/order to the Sub Registrar, Kozhikode, for lifting the order of attachment. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** bkn/- 7 MAT.APPEAL NO. 108 OF 2019 **==> picture [440 x 621] intentionally omitted <==** 8 MAT.APPEAL NO. 108 OF 2019 **==> picture [440 x 621] intentionally omitted <==** 9 MAT.APPEAL NO. 108 OF 2019 **==> picture [440 x 621] intentionally omitted <==**