E.K. RAMESH BABU v. V.P SHYNI

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 16[TH] DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943 MAT.APPEAL NO.1235 OF 2015 AGAINST THE JUDGMENT DATED 15.10.2015 IN O.P.NO.448 OF 2013 OF FAMILY COURT, KANNUR** **APPELLANT:** **E.K RAMESH BABU, AGED 45 YEARS, S/O. LATE V. KUNHAMBU NAMBIAR, SOUPARNIKA, PARIYARAM P.O., KANNUR - 670 502.** **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI SRI.PRAJIT RATNAKARAN** ## **RESPONDENT:** **V.P SHYNI D/O. LATE GOPINATHAN NAIR, SOUBHAGYA, NEAR WEST U.P. SCHOOL, KIZHUNNA, P.O. THOTTADA, KANNUR - 670 010.** **BY ADVS. SRI.P.BHARATHAN SRI.GEORGE MATHEWS** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.12.2021, ALONG WITH Mat.Appeal.235 OF 2017 AND R.P.(FC) NO.44 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2 Mat.Appeal Nos.1235 of 2015, 235 of 2017 & R.P.(FC) No.44 of 2018** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 16[TH] DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943 MAT.APPEAL NO. 235 OF 2017** **AGAINST THE JUDGMENT DATED 27.10.2016 IN O.P.NO.137 OF 2015 OF THE FAMILY COURT, KANNUR** ## **APPELLANT:** **SHYNI.V.P., AGED 41 YEARS, D/O.GOPINATHAN NAMBIAR, RESIDING AT 'SOUBHAGYA', KIZHUNNA, NEAR WEST U.P.SCHOOL, P.O.THOTTADA, KANNUR – 670010.** **BY ADV SRI.P.BHARATHAN** ## **RESPONDENT:** **E.K.RAMESH BABU AGED 45 YEARS, S/O.M.V. KUNHAMBU NAMBIAR, 'SOUPARNIKA', PARIYARAM PO, KANNUR DISTRICT, PIN – 670502.** **BY ADVS.** **SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.12.2021, ALONG WITH Mat.Appeal.1235/2015 AND R.P.(FC) NO.44 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3 Mat.Appeal Nos.1235 of 2015, 235 of 2017 & R.P.(FC) No.44 of 2018** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 16[TH] DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943 RPFC NO. 44 OF 2018** **AGAINST THE ORDER DATED 27.10.2016 IN M.C.NO.87 OF 2015 OF FAMILY COURT, KANNUR** ## **REVISION PETITIONER:** **SHYNI V.P., AGED 41 YEARS, D/O.GOPINATHAN NAMBIAR, RESIDING AT SOUBHAGYA, KIZHUNNA, NEAR WEST UP SCHOOL, P.O.THOTTADA, KANNUR-670 010.** **BY ADV SRI.P.BHARATHAN** ## **RESPONDENT:** **E.K. RAMESH BABU** **S/O.M.V.KUNHAMBU NAMBIAR, AGED 45 YEARS, SOUPARNIKA, PARIYARAM P.O., KANNUR DISTRICT, PIN-670 502.** **BY ADVS. ABDUL RAOOF PALLIPATH** **K.R.AVINASH (KUNNATH) M.K.SUMOD** **E.MOHAMMED SHAFI** ## **THIS REV.PETITION (FAMILY COURT) HAVING COME UP FOR** **FINAL HEARING ON 16.12.2021, ALONG WITH Mat.Appeal.NOS.1235 OF 2015 AND 235 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **4 Mat.Appeal Nos.1235 of 2015, 235 of 2017 & R.P.(FC) No.44 of 2018** ## **JUDGMENT/ORDER** ## Ajithkumar, J. Mat.Appeal No.1235 of 2015 was filed by the petitionerhusband in O.P.No.448 of 2015 on the file of the Family Court, Kannur. That was a petition filed seeking dissolution of marriage under Sections 13(1) and (1A) of the Hindu Marriage Act, 1955. That petition was dismissed and the order of dismissal is in challenge in this appeal. 2. Mat.Appeal No.235 of 2017 was filed by the petitioner-wife in O.P.No.137 of 2015 on the file of the Family Court, Kannur. She also filed M.C.No.87 of 2015 before the said court. She filed those cases claiming past and future maintenance. Both the O.P. and the M.C. were allowed in part only. The appellant filed this appeal seeking to modify the order in O.P.No.137 of 2015 and to allow past maintenance at the rate of Rs.10,000/- per month. 3. R.P.(FC) No. 44 of 2018 was filed assailing the order in M.C.No.87 of 2015. The appellant seeks to modify the order of the Family Court allowing monthly maintenance at ## **5 Mat.Appeal Nos.1235 of 2015, 235 of 2017 & R.P.(FC) No.44 of 2018** the rate of Rs.4,000/- per month from the date of petition and to allow monthly maintenance at the rate of Rs.10,000/-. 4. A compromise petition dated 06.09.2021 was filed by the parties as I.A.No.1 of 2021 stating that they have settled the dispute involved in all the three cases. After considering the terms of compromise, this Court ordered on 16.11.2021 that Mat.Appeal No.1235 of 2015 cannot be disposed of in terms of the compromise petition. 5. Subsequently both parties together filed I.A.No.2 of 2021 under Section 13B of the Hindu Marriage Act along with I.A.No.3 of 2021 with a prayer to dispense with the waiting period of six months as provided under Section 13B(2) of the Act. 6. Heard the learned counsel appearing for the petitioner and the learned counsel for the respondent. 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 13B(2) of the Act before allowing divorce on mutual ## **6 Mat.Appeal Nos.1235 of 2015, 235 of 2017 & R.P.(FC) No.44 of 2018** 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 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.' 8. The petition for divorce was filed in the year 2013. The Family Court disposed of that case on 15.10.2015. The O.P. and M.C. claiming past and future maintenance were filed by the respondent in 2015. Those cases were disposed of by the Family Court on 27.10.2016. After that the parties have come up in appeals and the appeals have been pending before **7 Mat.Appeal Nos.1235 of 2015, 235 of 2017 & R.P.(FC) No.44 of 2018** this Court. Considering the fact that the litigation between the parties have been pending for such a long period and there is no likelihood of reunion between the parties and also that the parties have already made sufficient provision for the future maintenance of the respondent-wife, we are of the view that the waiting period of six months can be waived in this case. Therefore, I.A.No.3 of 2021 is allowed. 9. Having heard both sides and also taking into account the averments in the affidavit filed by both the appellant and the respondent in support of the application, we are convinced that there is no possibility of reunion of the parties and on their free will they have decided to dissolve their marriage. In the said circumstances, we allow I.A.No.2 of 2021. 10. The parties have settled all the disputes between them and the terms of the compromise have been reduced into writing as reflected in I.A.No.1 of 2021. As per the terms the respondent wife has agreed to withdraw Mat.Apeal Nos.235 of 2017 and R.P.(FC) No.44 of 2018. **8 Mat.Appeal Nos.1235 of 2015, 235 of 2017 & R.P.(FC) No.44 of 2018** In the above circumstances, Mat.Appeal No.1235 of 2015 is disposed of and marriage between the appellant and the respondent is dissolved under Section 13B of the Hindu Marriage Act and, Mat.Appeal No.235 of 2017 and R.P.(FC) No.44 of 2018 are dismissed as withdrawn. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr