# **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 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 O.P (FC) NO.100 OF 2023 AGAINST THE ORDER DATED 29.10.2022 IN I.A.NO.7576 OF 2022 IN UN NUMBERED O.P OF 2022 OF FAMILY COURT,ERNAKULAM PETITIONER-1/PETITIONER-1 & PETITIONER-2/PETITIONER-2**
**1 ARCHANA SANTHOSH, D/O.SANTHOSH KUMAR P, AGED 24 YEARS "ARCHANA", SOPHIA EDEN VILLA NO.6, CHERIAPPILLY, NORTH PARAVOOR, ERNAKULAM, PIN - 683518 2 SACHIN K. VAIKAN, S/O.KALADHARAN P V AGED 28 YEARS "VAIKAN'S HOUSE", NADAKKAVU, UDAYAMPEROOR, THRIPPUNITHURA- ERNAKULAM, PIN - 682307 BY ADVS. TITUS MANI P.A.JACOB BINNY THOMAS SWAROOP A.P. K.P.REMA DEVI**
## **RESPONDENT/RESPONDENT:**
**NIL**
**THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
## P.G.Ajithkumar, J.
This Original Petition under Article 227 of the Constitution of India is filed by the petitioner Nos.1 and 2 in I.A.No.7576 of 2022 in an unnumbered original petition before the Family Court, Ernakulam. They filed the said interlocutory application under the proviso to Section 14(1) of the Hindu Marriage Act, 1955. The Family Court refused leave and dismissed I.A.No.7576 of 2022 as per Ext.P3 order dated 29.10.2022. The said order is under challenge.
2. The learned counsel appearing for petitioner No.1 as well as petitioner No.2 are heard.
3. The learned counsel appearing for petitioner No.1 would submit that the Family Court did not consider the proviso to Section 14(1) of the Hindu Marriage Act in its proper perspective and the interpretation given to it went wrong. The proviso empowers the Family Court to grant leave for presentation of a petition for divorce on mutual consent under Section 13B of the Hindu Marriage Act before elapsing one year from the date of marriage if there is sufficient
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reason. It is contended that the Family Court proceeded as if the Court has no empowerment, and that occasioned gross injustice to the parties. The learned counsel would submit that this is a case of exceptional nature entailing grant of leave.
4. Ext.P1 is the petition filed under the proviso to Section 14(1) of the Hindu Marriage Act seeking leave. Section 14(1) bars the Family Court from entertaining a petition for dissolution of marriage unless a period of one year from the date of marriage is elapsed on the date of presentation of the petition. The proviso enables the court to accord leave for presentation of a petition before elapsing of one year if the court is satisfied after hearing the parties that there existed sufficient reasons for granting leave. The proviso however insists on a further condition, in the event of granting a decree of divorce in such a petition, that the decree shall not have effect until after the expiry of one year from the date of marriage.
5. The Family Court after referring to the principles laid down by the Apex Court in **Amardeep Singh v. Harveen Kaur [(2017) 8 SCC 746]** held that although waiting period
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of six months for considering a petition for divorce filed under Section 13B of the Hindu Marriage Act can be waived, the period of one year stipulated in Section 14(1) cannot be relaxed. Section 13B(2) of the Hindu Marriage Act insists that a petition filed for divorce on mutual consent shall not be considered not earlier than six months of the date of its presentation. There is no provision empowering the Court to waive the said period of six months. It was in that context the Apex Court in **Amardeep Singh** supra held that the Court is not powerless if the circumstances of a case are such that the parties would be put to extreme hardship by keeping the proceedings pending for the cooling period of six months.
6. In **Vishnudas H and another v. Nil [2020(4) KHC 598],** this Court held;
“8. A reading of Section 14(1) of The Act, will show that, though the substantial provision provides a restriction in entertaining an application for dissolution of a marriage before the lapse of one year from the date of marriage, the proviso permits the court to grant leave to present the petition before the lapse of one year from the date of marriage, if the case is one of
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exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. The proviso to the section creates two instances where the court can grant leave to excuse time limit i.e., exceptional hardship to the petitioner or exceptional depravity to the respondent.
9. It is common knowledge that none enters into a marriage for the purpose of dissolving it. Certainly, at the time when the marriage vow is taken or the knot is tied, the intention is to create a permanent bond. However, human nature being a complex one, the error in judgment could be realized instantly or belatedly. When that error in judgment is realized, instantly, as it has happened in the present case, a window is provided by law, through the proviso, against the bar under Section 14(1) of The Act, for persons like the petitioners, to shorten their mental trauma by seeking permission to waive the one year period, of course, on satisfying the conditions stipulated.”
7. Section 14(1) of the Hindu Marriage Act prohibits the Court from considering a petition filed for dissolution of marriage unless a period of one year from the date of marriage is already elapsed. The statute itself provides for
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granting leave to the parties before the lapse of such period of one year in exceptional cases. When such an enabling provision is provided in the statute itself, the principle laid down in **Amardeep Singh** referred to above cannot be interpreted to hold that the Court is not empowered at all to entertain a petition for divorce before the expiry of one year from the date of marriage. The Family Court can certainly grant leave if the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. The question is whether there is such sufficient reason for granting leave or not.
8. This Court in **Vishnudas H** (supra) considered a case where the marriage was solemnised on 07.11.2019 and submitted an application for divorce on mutual consent on 11.01.2020. It was held-,
“16. A reading of the petition seeking permission in the instant case, as has been narrated earlier, shows that within few hours of the marriage, the petitioners separated from their companionship. It is jointly stated that neither had they lived together as husband and wife nor did they have
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any physical relationship. All attempts for mediation failed and their relationship has irretrievably broken down. The very fact that they have jointly stated that continuance of their relationship would cause more stress and trauma and that there is absolutely no trace of any stress or trauma in dissolving the marriage, speaks volumes about the exceptional hardship that will be caused to the parties to the marriage, if they are statutorily compelled to wait for a further period of time so as to merely satisfy the legal prescription of expiry of one year from the date of marriage. Both of them have also stated, together, that further delaying the dissolution of marriage has a propensity to cause damage to their career as well as their future prospects of marriage. They have also affirmed that their views are irreconcilable. When, in unison they state that continuance of marriage is more traumatic than dissolution of marriage, and that they lived together as husband and wife only for few hours, it satisfies the test of exceptional hardship contemplated under the proviso to Section 14(1) of The Act, to be granted the benefit of waiver of the period of one year.”
9. In Ext.P1, the 1[st] petitioner herein has narrated the reasons for submitting a petition for divorce without waiting
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for a period of one year from the date of marriage. Marriage of the petitioner was solemnised on 07.09.2022. They filed petition for divorce on 29.10.2022 stating that they have been living separate from 13.09.2022. The petitioners would state that the marriage was not consummated and on no account could they continue cohabitation. The reasons stated by the petitioners are akin to those in **Vishnudas H** referred to above.
We are of the view that the law laid down in the aforesaid decision applies to this case. Leave for presentation of the petition for divorce on mutual consent can be granted to the petitioners. Accordingly, this original petition is allowed. On reversing Ext.P3 order, I.A.No.7576 of 2022 in unnumbered O.P. of 2022 before the Family Court, Ernakulam is allowed.
Sd/-
## **ANIL K. NARENDRAN, JUDGE**
Sd/-
## **P.G. AJITHKUMAR, JUDGE**
PV
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## **APPENDIX OF OP (FC) 100/2023**
## **PETITIONER EXHIBITS**
**Exhibit P-1 TRUE COPY OF THE IA NO.7576/2022 DATED 27-10-2022 Exhibit P-2 TRUE COPY OF THE UN-NUMBERED OP DATED 27-10-2022 Exhibit P-3 TRUE COPY OF ORDER DT. 29-10-2022 IN IA NO. 7576/2022 IN UN NUMBERED OP**
