Gijoosh Gopi v. Sruthi S

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 17TH DAY OF AUGUST 2012/26TH SRAVANA 1934 OP (FC).No. 2272 of 2012 (R) ---------------------------IA.1013/2012 & I.A.941/2012 of FAMILY COURT, ALAPPUZHA PETITIONER/1ST PETITIONER : --------------------------------------- GIJOOSH GOPI, S/O.GOPI, GIJOOSH NIVAS, KALAVOOR, VALAVANADU, ALAPPUZHA BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW RESPONDENT/2ND PETITIONER: ------------------------------------------ SRUTHI S, D/O.UTHAMAN, PUTHENVEEDU, THAKAZHY P.O, ALAPPUZHA 688 001 BY ADV. SRI.P.SUPRAMODAM BY ADV. SRI.JAWAHAR JOSE THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 17-082012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A P P E N D I X O.P.(F.C.) No. 2272 of 2012 (R) ## PETITIONER'S EXHIBITS : EXT.P1 A TRUE COPY OF THE AGREEMENT DATED 31/05/2012 EXECUTED BETWEEN THE PETITIONEER AND THE RESPONDENT. EXT.P2 A TRUE COPY OF THE JOINT PETITION FOR DIVORCE FILED BY THE PETITIONER AND THE RESPONDENT BEFORE THE FAMILY COURT ALAPPUZHA EXT.P3 A TRUE COPY OF I.A. NO.941/2012 FILED BY THE PETITIONER AND THE RESPONDENT BEFORE THE FAMILY COURT ALAPPUZHA EXT.P4 A TRUE COPY OF I.A NO 1013/2012 FILED BY THE PETITIONER AND THE RESPONDENT BEFORE THE FAMILY COURT ALAPPUZHA EXT.P5 A TRUE COPY OF THE ORDER DATED 20/06/2012 OF THE FAMILY COURT ALAPPUZHA IN I.A NO 1013/2012 AND I.A NO.941/2012 RESPONDENTS' EXHIBITS : NIL. TGS (TRUE COPY) ## **C.R.** ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** ## **----------------------------------------------O.P.(FC) No.2272 of 2012 ----------------------------------------------Dated 17[th] August, 2012. J U D G M E N T** ## **K.T.Sankaran, J.** The marriage between the petitioner and the respondent was solemnized on 24.4.2012. The parties are Hindus. On the date of marriage itself, they realized that they could not continue the marital relationship. The respondent expressed the view that she was not willing for the marriage and she wanted to marry another man. She also stated that she agreed for the marriage only due to the compulsion on the part of her parents. The marriage was not consummated. Mediators intervened. On 31.5.2012, an agreement was executed between the parties in the presence of the representatives of SNDP Sakhas in which the parties are members. On the same day, viz., 31.5.2012, the parties filed a petition under Section 13B of the Hindu Marriage Act, 1955 (for short, 'the Act') before the Family Court, Alappuzha. Since the application was filed before the expiry of the period of one year from the date of marriage, they filed an application under the proviso to Section 14 of the Act to allow them to present the 2 O.P.(FC) No.2272 of 2012 petition under Section 13B before the expiry of one year since the date of marriage. In the affidavit, the facts and circumstances were explained in detail. It was also stated that exceptional hardship would be caused to the parties, if the petition was not entertained. 2. The court below dismissed the application for leave to present the petition before the expiry of one year of the date of marriage, by the order impugned in this Original Petition (FC). The Family Court held that no exceptional circumstances were made out for granting leave as prayed for by the parties. 3. Section 13B of the Act was inserted by the Marriage Laws (Amendment) Act, 1976 (Act 68 of 1976). Sub Section (1) of Section 13B reads as follows : 13B. Divorce by mutual consent (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. 3 O.P.(FC) No.2272 of 2012 (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. 4. It is provided in sub section (1) of Section 13B that a petition for dissolution of marriage by a decree of divorce under Section 13B may be filed “subject to the provisions of the Act”. Section 14 of the Act provides that notwithstanding anything contained in the Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of presentation of the petition one year has elapsed since the date of the marriage. The words “unless at the date of presentation of the petition one year has elapsed” were substituted by the Amendment Act 68 of 1976 for the words “before three years have elapsed”. 5. For the sake of convenience, Section 14 of the Act is extracted below : 4 O.P.(FC) No.2272 of 2012 ## “14. **No petition for divorce to be presented within one year of marriage** (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage : Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.” ## 6. On a combined reading of Sections 13-B and 14 O.P.(FC) No.2272 of 2012 5 of the Act, it is clear that for filing a petition under Section 13B of the Act, a period of one year should elapse from the date of marriage. The proviso to Section 14(1) is an exception to the necessity for expiration of a period of one year since the date of marriage to enable a party to file a petition for divorce. If an application for leave under the proviso to Section 14 is presented by the parties, what the Court is expected to look into is whether there is exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. If the Court is satisfied about the existence of the ingredients of the proviso to Section 14, leave would be granted to present the petition for divorce even before the expiry of one year since the date of marriage. Even if leave is granted, but, if it appears to the Court at the hearing that the leave was obtained by misrepresentation or concealment of the nature of the case, the Court has power to impose a condition that the decree shall not have effect until after the expiration of one year from the date of marriage or the Court may even dismiss the petition for divorce without prejudice to any petition which may be brought after the expiration of one year. Once it is made out that there 6 O.P.(FC) No.2272 of 2012 are exceptional circumstances warranting grant of leave to avoid hardship or depravity of the nature mentioned in the proviso to Section 14 of the Act, the Court will grant leave to present the petition notwithstanding that one year has not elapsed since the date of the decree. 7. In **Pooja Gupta and another v. Nil** : I(2005) DMC 571 and in **Sweety E.M. v. Sunil Kumar K.B.** : AIR 2008 Karnataka 1, it was held that in exceptional circumstances, the Court could entertain the petition under Section 13B of the Act, even before the expiry of one year, invoking the proviso to Section 14 of the Act. 8. In the present case, the marriage did not really last even for a day. The marriage was not consummated. There is no dispute on this aspect between the parties. The agreement executed by the parties in the presence of the representatives of SNDP Sakhas would also disclose that mediators intervened and they were also satisfied about the inability to continue the marital relationship between the parties. On the basis of the materials produced before Court, it is clear that the case is one of exceptional hardship to the O.P.(FC) No.2272 of 2012 7 parties and that it would be impossible for the parties to continue the relationship any further. In the facts and circumstances, it could not be assumed that there would be any chance of reunion. Prima facie, there is no indication of any misrepresentation or concealment of the nature of the case or any fraud. We are of the view that the court below should have allowed the application for leave under the proviso to Section 14 of the Act. Accordingly, the order dated 20.6.2012 passed by the Family Court is set aside and the application filed by the petitioners to grant leave is allowed. The Family Court shall treat the application under Section 13B to have been filed on 31.5.2012, enabling the parties to make a motion under Section 13B(2) of the Act on the expiry of the period of six months from 31.5.2012. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)