Arun Subramoniam v. Kalaivani

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 20[TH] DAY OF DECEMBER 2022/29TH AGRAHAYANA, 1944 MAT.APPEAL NO.577 OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 31.03.2022 IN OP(G&W)NO.336 OF 2017 ``` ``` OF FAMILY COURT, TRIVANDRUM ``` ``` APPELLANT: ``` ``` ARUN SUBRAMONIAM, AGED 42 YEARS S/O. S. SOMAN, 73/3007-B VISHNUKRIPA, KALEZHATH LANE, PACHALAM.P.O., COCHIN, ERNAKULAM - 682012. ``` ``` BY ADV B.MOHANLAL ``` ``` RESPONDENT: ``` ``` KALAIVANI, AGED 33 YEARS D/O. NATARAJAN, RESIDING AT KALAIVANI BHAVAN, KALLUVETTAMKUZHI, VENGANOOR.P.O. VIZHINJAM, THIRUVANANTHAPURAM - 695 523. ``` ``` BY ADVS. ``` ``` M.R.RAJESH SANDHYA E.S. ``` ``` THIS MATRIMONIAL APPEAL HAVING BEN FINALLY HEARD ON 20.12.2022, ALONG WITH Mat.Appeal.582/2022, 610/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Mat. App Nos.577, 582, 610, 611 of 2022 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 20[TH] DAY OF DECEMBER 2022/29TH AGRAHAYANA, 1944 MAT.APPEAL NO.582 OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 31.03.2022 IN OP(HMA)NO.462 OF 2017 OF FAMILY COURT, TRIVANDRUM ``` ``` APPELLANT: ``` ``` ARUN SUBRAMONIAM S., AGED 42 YEARS S/O.S.SOMAN, 73/3007B, VISHNUKRIPA, KALEZHATH LANE, PACHALAM P.O., COCHIN, ERNAKULAM, PIN - 682 012. ``` ## **`BY ADV B.MOHANLAL`** ``` RESPONDENT: ``` ``` KALAIVANI, AGED 38 YEARS D/O.NATARAJAN, RESIDING AT KALAVANI BHAVAN, KALLUVETTAM KUZHI, VENGANOOR P.O., VIZHINJAM, THIRUVANANTHAPURAM, PIN - 695 523. ``` ``` BY ADVS. M.R.RAJESH SANDHYA E.S. ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2022, ALONG WITH Mat.Appeal.577/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Mat. App Nos.577, 582, 610, 611 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR TUESDAY, THE 20[TH] DAY OF DECEMBER 2022/29TH AGRAHAYANA, 1944 MAT.APPEAL NO.610 OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 31.03.2022 IN OP.NO.1689 OF 2018 AND COUNTER CLAIM OF FAMILY COURT, TRIVANDRUM ``` ``` APPELLANTS: ``` ``` 1 ARUN SUBRAMONIAM, AGED 42 YEARS S/O. S. SOMAN, 73/3007-B VISHNUKRIPA, KALEZHATH LANE, PACHALAM.P.O., COCHIN, ERNAKULAM - 682012. ``` ``` 2 JAYA LEKSHMI.V., AGED 62 YEARS, W/O. S.SOMAN, D/O. VELAMMAL CHELLAMMAL, 73/3007-B, VISHNUKRIPA, KALEZHATH LANE, PACHALAM.P.O., COCHIN, ERNAKULAM - 682012. ``` ``` BY ADV B.MOHANLAL ``` ## **`RESPONDENT:`** ``` KALAIVANI, AGED 33 YEARS D/O. NATARAJAN, RESIDING AT KALAIVANI BHAVAN, KALLUVETTAMKUZHI, VENGANOOR.P.O. VIZHINJAM, THIRUVANANTHAPURAM - 695 523. ``` ``` BY ADV M.R.RAJESH ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2022, ALONG WITH Mat.Appeal.577/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 Mat. App Nos.577, 582, 610, 611 of 2022 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 20[TH] DAY OF DECEMBER 2022/29TH AGRAHAYANA, 1944 MAT.APPEAL NO.611 OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 31.03.2022 IN OP(HMA)NO.1534 OF 2016 OF FAMILY COURT, TRIVANDRUM ``` ## **`APPELLANT:`** ``` ARUN SUBRAMONIAM, AGED 42 YEARS S/O.S.SOMAN, 73/3007-B, VISHNUKRIPA, KALEZHATH LANE, PACHALAM P.O.,COCHIN, ERNAKULAM - 682 012. ``` ``` BY ADV B.MOHANLAL ``` ## **`RESPONDENT:`** ``` KALAIVANI, AGED 38 YEARS, D/O.NATARAJAN, RESIDING AT KALAIVANI BHAVAN, KALLUVETTAMKUZHI, VENGANOOR P.O., VIZHINJAM, THIRUVANANTHAPURAM - 695 523. ``` ``` BY ADV M.R.RAJESH ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2022, ALONG WITH Mat.Appeal.577/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 Mat. App Nos.577, 582, 610, 611 of 2022 ## **JUDGMENT** Anil K. Narendran, J. Since the parties are one and the same, these matters are heard together and are being disposed of by this common judgment. 2. Mat. App.No.577 of 2022:- The appellant-husband is the petitioner in O.P(G&W)No.336 of 2017 filed for appointing him as the guardian of the minor daughter, ‘Krishna Arun’ and for a decree directing the respondent-wife to entrust the custody of the minor child to the appellant and if the respondent fails to do so, the appellant may be allowed to take custody of the minor child through court. The Family Court by the judgment dated 31.03.2022 dismissed the said original petition; but the appellant-husband was granted custody of the minor ‘Krishna Arun’ on every second Saturdays from 10:00 a.m. to 04:00 p.m. The handing over shall be at the premises of the Family Court. It was also made clear that the appellant-husband shall have the right to take the child out of the court campus within the limits of Trivandrum city. Challenging the judgment and decree dated 31.03.2022 of the Family Court, Thiruvananthapuram in O.P.No.336 of 2017, the appellant has approached this Court in this appeal, invoking 6 Mat. App Nos.577, 582, 610, 611 of 2022 the provisions under Section 19(1) of the Family Courts Act, 1984. 2.1. On 12.08.2022, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. 3. Mat.Appeal No.582 of 2022:- The appellant-husband is the petitioner in O.P.No.1153 of 2016 on the file of the Family Court, Ernakulam, which was later transferred to the Family Court, Thiruvananthapuram and re-numbered as O.P.(HMA)No.462 of 2017, for dissolution of marriage. By the judgment dated 31.03.2022, the Family Court dismissed the said original petition. Challenging the said judgment and decree, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 3.1. On 23.08.2022, when this appeal came up for admission, this Court admitted the matter on file and issued urgent notice to the respondent by speed post. 4. Mat.Appeal No.610 of 2022:- The appellants are the respondents in O.P.No.1689 of 2018 on the file of the Family Court, Thiruvananthapuram, filed by the respondent herein-wife of the 1[st] 7 Mat. App Nos.577, 582, 610, 611 of 2022 appellant, seeking recovery of gold ornaments, realisation of money and maintenance. In the said original petition, the appellants filed counter claim seeking to realise 120 grams of gold ornaments, which are illegally retained by the respondent herein-wife. By the judgment and decree dated 31.03.2022, the Family Court granted maintenance to the respondent-wife at the rate of Rs.10,000/- per months. The counter claim filed by the appellants herein was dismissed. Challenging the said judgment and decree, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 4.1. The appeal was filed along with an application to condone the delay of 21 days in filing the appeal. On 01.09.2022, this Court issued consolidated notice on the delay condonation application as well as in the appeal. 5. Mat.Appeal No.611 of 2022:- The appellant-husband is the respondent in O.P.No.1534 of 2016 on the file of the Family Court, Thiruvananthapuram, a petition filed by the respondent herein-wife, seeking a decree for restitution of conjugal right. By the judgment and decree dated 31.03.2022, the Family Court dismissed the said original 8 Mat. App Nos.577, 582, 610, 611 of 2022 petition. Challenging the said judgment and decree, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 5.1. On 26.08.2022, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent. 6. On 06.10.2022, when these Mat.Appeals came up for consideration, the learned counsel on both sides submitted that the matters can be referred for mediation. Accordingly, both parties were directed to appear before the Nodal Officer, Ernakulam Mediation Centre, in the premises of this Court on 12.10.2022 at 10.15 a.m. 7. On 20.12.2022 when these appeals were taken up for consideration, it was submitted by the learned counsel on both sides that the parties have settled the disputes in mediation and a memorandum of settlement dated 16.12.2022 entered into between the parties will be placed on record along with the report of the Mediator. In terms of the settlement, the appellant-husband and the respondent-wife in Mat.Appeal No.582 of 2022 have filed I.A.No.3 of 2022, under Section 13B of the Hindu Marriage Act, 1955 seeking a 9 Mat. App Nos.577, 582, 610, 611 of 2022 decree of divorce by mutual consent, for dissolving the marriage solemnised on 15.09.2011, at Aswathy Auditorium, Vizhinjam, Thiruvananthapuram. They have also filed I.A.No.2 of 2022 under Section 13B(2) of the said Act, seeking an order to waive the cooling period of six months in considering the application for divorce on mutual consent. 8. Heard the learned counsel for the appellants-husband and his parents and also the learned counsel for the respondent-wife. 9. 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 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 10 Mat. App Nos.577, 582, 610, 611 of 2022 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.” 10. Today when these matters are taken up for consideration, we have interacted with the petitioners in I.A.No.3 of 2022 in Mat.Appeal No.582 of 2022, a joint petition filed under Section 13B of the Act. 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 from the year 2016 onwards. Since the parties have genuinely settled their disputes in mediation and since they are living separately from the year 2016 onwards, we find that the cooling period of six months 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 in Mat.Appeal No.582 of 2022 is allowed by waiving the 11 Mat. App Nos.577, 582, 610, 611 of 2022 statutory period of six months provided under Section 13B(2) of the Act and I.A.No.3 of 2022 in Mat.Appeal No.582 of 2022 is allowed by granting a decree of divorce by mutual consent under Section 13B of the Act, by dissolving the marriage solemnised between the appellant- husband and respondent-wife in Mat.Appeal No.582 of 2022 on 15.09.2011 at Aswathy Auditorium, Vizhinjam, Thiruvananthapuram. 11. In Mat. Appeal No.610 of 2022, the appellants have filed I.A.No.3 of 2022 seeking an order to lift the attachment ordered by the Family Court, Thiruvananthapuram in I.A.No.2386 of 2018 in O.P.No.1689 of 2018, pertaining to the properties of the 2[nd] respondent therein, and to communicate the same to the Sub Registrar, Ernakulam and Village Officer, Ernakulam Village Office. In the above circumstances, these appeals are disposed of in terms of the terms and conditions contained in the memorandum of agreement dated 16.12.2022, which shall form part of this judgment. In view of the order in I.A.No.3 of 2022, the marriage solemnised between the appellant-husband and the respondent-wife in Mat.Appeal No.582 of 2022 on 15.09.2011 at Aswathy Auditorium, Vizhinjam, Thiruvananthapuram, is dissolved by mutual consent under Section 12 Mat. App Nos.577, 582, 610, 611 of 2022 13B of the Hindu Marriage Act. In terms of the settlement, I.A.No.3 of 2022 in Mat.Appeal No.610 of 2022 is also allowed, thereby lifting the order of attachment by the Family Court, Thiruvananthapuram in I.A.No.2386 of 2018 in O.P.No.1689 of 2018 pertaining to the properties of the 2[nd] respondent in that application. The Family Court shall communicate a copy of this order to the Village Officer, Ernakulam Village and also the Sub Registrar Office, Ernakulam, immediately on receipt of a copy of this judgment. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** bkn/- 13 Mat. App Nos.577, 582, 610, 611 of 2022 **==> picture [445 x 628] intentionally omitted <==** 14 **==> picture [445 x 628] intentionally omitted <==** Mat. App Nos.577, 582, 610, 611 of 2022 15 **==> picture [445 x 628] intentionally omitted <==** Mat. App Nos.577, 582, 610, 611 of 2022 16 **==> picture [445 x 628] intentionally omitted <==** Mat. App Nos.577, 582, 610, 611 of 2022 17 Mat. App Nos.577, 582, 610, 611 of 2022 ## **`APPENDIX OF MAT.APPEAL 610/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure-I ``` ``` TRUE COPY OF THE ORDER DATED 31/07/2018 IN I.A.NO:2386/2018 IN O.P.NO:1689/2018 ``` ``` Annexure II TRUE COPY OF THE SCHEDULE OF PROPERTY FILED BY THE RESPONDENT IN O.P.NO:1689/2018 BEFORE THE LEARNED FAMILY COURT, THIRUVANANTHAPURAM ```