Johny Sebastian vs Jossy @ Saramma.K.J

## **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 25[TH] DAY OF JANUARY 2023/5TH MAGHA, 1944 MAT.APPEAL NO.518 OF 2022** **AGAINST THE ORDER DATED 26.03.2022 IN O.P.NO.133 OF 2018** **OF THE FAMILY COURT, TIRUR** ## **APPELLANT/PETITIONER:** **JOHNY SEBASTIAN, AGED 52 YEARS, S/O SEBASTIAN, AMICUS THE LAWYERS, I.B.COMPLEX, A.G.ROAD, KOZHIKODE,, PIN - 673001** **BY ADVS.M.PROMODH KUMAR MAYA CHANDRAN ABIMALEK C VALSAN** ## **RESPONDENT/RESPONDENT:** **JOSSY @ SARAMMA.K.J, AGED 45 YEARS, D/O JOSEPH JOHN, NEST, GURUVAYOORAPPAN COLLEGE P.O., KOZHIKODE, PIN - 673014** **ADV SRI.ELDHO PAUL** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- Mat.Appeal No.518 of 2022 ## **“CR”** ## **JUDGMENT** ## Anil K. Narendran, J. The appellant filed O.P.No.133 of 2018 before the Family Court, Tirur, against the respondent herein-wife, under Section 27(b) and (d) of the Special Marriage Act, 1954, seeking a decree of divorce for dissolving the marriage solemnised between them on 18.12.2004. That original petition ended in dismissal by the judgment and decree dated 26.03.2022. Feeling aggrieved, the appellant is before this Court in this appeal invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 2. On 01.08.2022, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent. 3. During the pendency of this appeal, the parties have settled their disputes and entered into a settlement agreement dated 16.12.2022, which is placed on record as Annexure 1, along with I.A.No.1 of 2023, a petition filed under Section 28 of the Special Marriage Act, 1954 seeking a decree of divorce by mutual consent. The said interlocutory -3- Mat.Appeal No.518 of 2022 application filed on 08.01.2023 is supported by I.A.No.2 of 2023 filed on 23.01.2023 seeking an order to waive the statutory period of six months specified in Section 28 of the Special Marriage Act. It is stated in the affidavit filed in support of the said interlocutory application that the parties are residing separately from August, 2016 onwards. 4. In **Amardeep Singh v. Harveen Kaur [(2017) 8 SCC 746]** the question which came up for consideration before the Apex Court was whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for a motion for passing a decree of divorce by mutual consent is mandatory or can be relaxed in any exceptional situations. 5. Section 13B of the Hindu Marriage Act, 1955, which deals with divorce by mutual consent, reads thus; “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 solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground -4- Mat.Appeal No.518 of 2022 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. (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 solemnised 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.” (underline supplied) 5. In **Amardeep Singh [(2017) 8 SCC 746]** the Apex Court considered the question whether the provisions of Section 13B of the Hindu Marriage Act, 1955 laying down cooling-off period of six months is a mandatory requirement or it is open to the Family Court to waive the same having regard to the interest of justice in an individual case. The Apex Court noticed that the object of Section 13B of the Act is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to -5- Mat.Appeal No.518 of 2022 rehabilitate them as per available options. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) of the Act contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The amendment was inspired by the thought that forcible perpetuation of the status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off period under Section 13B(2) of the Act was to safeguard against a hurried decision if there was otherwise a possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option. In determining the question whether a provision is mandatory or directory, language alone is not always decisive. Regard must be had to the context, the subject matter and the object of the -6- Mat.Appeal No.518 of 2022 provision. This principle, as formulated in Justice G.P. Singh's Principles of Statutory Interpretation (9th Edition, 2004), has been cited with approval in **Kailash v. Nanhku, [(2005) 4 SCC 480]** . Applying the said principle, the Apex Court held that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2) of the Hindu Marriage Act, 1955, it can do so 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 of the Code of Civil Procedure, 1908 Section 23(2) of the Hindu Marriage Act/Section 9 of the Family Courts Act, 1984 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; -7- Mat.Appeal No.518 of 2022 (iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the court concerned.” Since the period mentioned in Section 13B(2) of the Hindu Marriage Act is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. In conducting such proceedings the court can also use the medium of videoconferencing and also permit genuine representation of the parties through close relations such as parents or siblings, where the parties are unable to appear in person for any just and valid reason, as may satisfy the court, to advance the interest of justice. 6. Section 10A of the Divorce Act, 1869 deals with dissolution of marriage by mutual consent, which reads thus; “10A. Dissolution of marriage by mutual consent.- (1) Subject to the provisions of this Act and the rules made -8- Mat.Appeal No.518 of 2022 thereunder, a petition for dissolution of marriage 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 Indian Divorce (Amendment) Act, 2001 (51 of 2001), on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of 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 by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and 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 declaring the marriage to be dissolved with effect from the date of decree.” (underline supplied) 7. In **Tomy Joseph v. Smitha Tomy [2018 (5)** **KHC 267]** a Division Bench of this Court noticed that the provisions contained in Section 10A of the Divorce Act, 1869, are, in substance, a verbatim reproduction of the provisions contained in Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954. The only -9- Mat.Appeal No.518 of 2022 substantial difference is that instead of the period of one year mentioned in Section 13B(1) of the Hindu Marriage Act and Section 28(1) of the Special Marriage Act, a period of two years of separate residence is provided under Section 10A(1) of the Divorce Act. The beneficiaries under the abovementioned provisions of different statutes are persons who want a decree of divorce by mutual consent and who file a joint petition for that relief. There can be no discrimination among them on the ground of religion. Divorce by mutual consent is a secular concept. When the Apex Court has declared the law that the ‘cooling off period’ of six months provided under Section 13B(2) of the Hindu Marriage Act is not mandatory but directory and such period can be allowed to be waived by the Court on satisfaction of certain conditions, denying that benefit to persons who are governed by the Divorce Act, 1869 would amount to unjust discrimination. Therefore, the Division Bench held that the dictum laid down by the Apex Court in **Amardeep Singh [2017 (8) SCC 746]** is applicable to a petition for divorce filed under Section 10A of the Divorce Act, 1869 and on satisfaction of the conditions -10- Mat.Appeal No.518 of 2022 laid down in that decision, the Family Court can waive the period of six months stipulated under Section 10A(2) of that Act. 8. Section 28 of the Special Marriage Act, 1954 deals with divorce by mutual consent, which reads thus; “28. Divorce by mutual consent.- (1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court by both the parties together 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. (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 district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.” (underline supplied) 9. The provisions contained in Section 28 of the Special Marriage Act, 1954, are, in substance, a verbatim -11- Mat.Appeal No.518 of 2022 reproduction of the provisions contained in Section 13B of the Hindu Marriage Act, 1955. Section 28(1) of the Special Marriage Act and Section 13B(1) of the Hindu Marriage Act prescribe a period of one year of separate residence. The beneficiaries under Section 28 of the Special Marriage Act and Section 13B of the Hindu Marriage Act are persons who want a decree of divorce by mutual consent and who file a joint petition for that relief. When the Apex Court in **Amardeep Singh [2017 (8) SCC 746]** has declared the law that the ‘cooling off period’ of six months provided under Section 13B(2) of the Hindu Marriage Act is not mandatory but directory and such period can be allowed to be waived by the Court on satisfaction of certain conditions, denying that benefit to persons who are governed by the Special Marriage Act, 1954 would amount to unjust discrimination. Therefore, the dictum laid down by the Apex Court in **Amardeep Singh [2017 (8) SCC 746]** , in the context of Section 13B of the Hindu Marriage Act, 1955 is applicable to a petition for divorce filed under Section 28 of the Special Marriage Act, 1954 and on satisfaction of the conditions laid down in that decision, the -12- Mat.Appeal No.518 of 2022 Family Court can waive the period of six months stipulated under Section 28(2) of that Act. 10. Today, when this matter is taken up for consideration, we have interacted with the parites in I.A.No.1 of 2023, a joint petition filed under Section 28 of the Special Marriage 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. Since August 2016, the appellant-husband and the respondent-wife are living separately. Since the parties have genuinely settled their disputes in mediation and since they are living separately, we find that the cooling period of six months 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, the parties can be granted a decree of divorce by mutual consent. 11. In such circumstances, I.A.No.2 of 2023 is allowed by waiving the statutory period of six months and I.A.No.1 of 2023 is allowed by granting a decree of divorce by mutual consent under Section 28 of the Special Marriage Act, by -13- Mat.Appeal No.518 of 2022 dissolving the marriage solemnised between the appellanthusband and respondent-wife on 18.12.2004 at Sub Registrar Office, Chalappuram. Accordingly, the appeal is disposed of in terms of the terms and conditions contained in the memorandum of settlement agreement dated 16.12.2022, which shall form part of this judgment. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** AV/28/1 -14- Mat.Appeal No.518 of 2022 ## **APPENDIX OF MAT.APPEAL 518/2022** **PETITIONER ANNEXURES** **Annexure -1 MEDIATION AGREEMENT EXECUTED BETWEEN THE PARTIES DATED 16.12.2022** IA 1/2023 IN MatAp]peal 518/2022-A]mexure -1 e **==> picture [149 x 21] intentionally omitted <==** **----- Start of picture text -----**<br> _.a arm REEun<br>**----- End of picture text -----**<br> BP 943963 > 2022 aJj}coo6nld ggiv; i6;/.I/ '=ty>` `.(`ir €;\3stdsoosg ga8!, ca9gr i f f li# -. fiHRE enosO ®9ei3co°, cod}ffi® ffl : ®#ch6nfl eaoo*db°m)g, :!#` a®.stL€coco®, ®ouenodig;d3 a®anpamaeyti#&t 9ad3, 53 QJ®gB®, ceeo6rf7 `:/ ", iv,.` @ou6rmqREa3 a®onQJa[dwrm] jedL5deqE3O. , `@db9g]caesg edB%, edgiv@daDOso ®9ngcogt cng® haaao eocoo, @mq§g, co3©3QJo q2iaed±d8 ®d2,cI@g±g3u, 6gponaa° 6gp6rra a®tlT+QI®3®s gae3o 46 **==> picture [417 x 234] intentionally omitted <==** **----- Start of picture text -----**<br> QJ®gBP ougFooco ®a®93 aogivQf® ®6nsoo aJ3d5l®o®3o ul®co°al@o<br>oufaaflgr a®gt3®3m aocafl®gff.<br>I<br>©6n83o ul065)d±<br>I ®m90<br>S*` -lea<br>I arfEIQ"<br>fi=- ` a Ei<br>I N,fee.?.t-...<br>::ia-<br>in,.-.EL<br>I<br>n"c®urt V.ut<br>I<br>!<br>•I.I<br>---- :`< :tt<br>**----- End of picture text -----**<br> FS0 VERIFIED 41 8 IA lra023 IN MatAppeal 518ra022-Annexure -1 ® **==> picture [150 x 14] intentionally omitted <==** **----- Start of picture text -----**<br> ¢db®&OaRERERun<br>**----- End of picture text -----**<br> **==> picture [74 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> OP 943964<br>**----- End of picture text -----**<br> > 63m3O ®as8O ulD@5l&ca qurfut%flS alg 6edSo®o ': ^(~., > co@®g3. @Oadlon)6, aloeJdi8¢#.v\ (co dE30o) Q8ono > ®a i8-12-2004 coo QflQJoanot\\t®edlm co3s6mu @oQjo@aarmodsomo®oa2JI BodrapjgSofl®o •;fty oot"cojgfflQfl®orofl®8 i6 QJ®gB89E! ®rDmco® @g306nd ootm ad3>d3 seof®3d3D®3o6>al®gof}s3E2£®06m-. a{m3o @6m8o alo@5]da,03 ®edl qigg!g in)j®€al62]Of%9®OQJ3db®30 a3Ia¢l(alo® Q{j®jocoQj3o g}s 6ifes3eyyg]Ofl6>m ®3sftTir>. d3}stct°T® dh30if or6tflaegocof| ®al]ed **==> picture [16 x 14] intentionally omitted <==** **----- Start of picture text -----**<br> u<br>**----- End of picture text -----**<br> **==> picture [356 x 69] intentionally omitted <==** **----- Start of picture text -----**<br> N:¥¥ELxpRA^::i:°~=.a<br>Nan€.<br>r=E3~giviv\cR`un<br>D.te-...-i<br>**----- End of picture text -----**<br> **==> picture [294 x 10] intentionally omitted <==** **----- Start of picture text -----**<br> ~ ,`riffffitit .v , . \ fry..try-_ .,,<br>**----- End of picture text -----**<br> FSO VERIFIED -41 9 IA IC023 IN Mat.Appca[ 518C022-Annexune -1 A ei7t"QjenJcf`Ato qp€P€S® ab3s©3S®3o ®alco*itDttril6W1S cOBsdim~ 6!rm``1o ulDdig` canDo utcastqngivgof, qjfty#Sunm!<rmo ®Owdends8 cOBQJ3rfe ®"edl entoaea{,no ®$9givco9g ft3saoon ®®9sun edas afinzaaLaeao&ItTrm{ibv QSEN. qfundi ®alqp3SOu3o ®3Scaml[r calou®®3en @aG9° drfo&d 6nto3Q3m®es ous3ofnl ®a3Sltoihafteenmr 9o&fl cocm®S OP 133CO]8 {,xpoodr] ®d9,sou diaJae¢rn onsco3 S®3o Qflal3~us erueo a]edgto*;!ooft®9®n Qncifroa6resai8 a®3o co3s@(mu etmeo ojos8} s} Qnafl cjdr3Q!o G*dQfo3Qeoee» ono8 @s6haisu ®o®9 \]`Pflndto89 4' ¢+Jap©a3eE dtjou{Tua®e8G>s a3iasttTunooedta£ ®to3Q ® I aon8o aee3o uledg}e03 ®edel3ee QnouoaLrmitrue ®3sng coa3 ou3aflcoDo[p owcm®la!ofwh QnQJoof] €9adcoo cos8Qfo m3O cooing cogfaungivndled outDuldgiv ao®Geeu areas- 2e`fu Q]$8Of ialdbo©O Outruroes eeosedou ®®8ener unca (eg3o®-qr @a|fldEd8) aoed ®givto. rfuoco eaoulflto Ede3 QJoca areQ]oQ}ao® at®aco§aJ5' giv8a3§®8o mQfochco8m®om-. ®Gmoo ulat51 ®On#O# ®Gmoo ulat51 s-faS FSO VERIFIED 41 10 IA I/2023 IN Mat.Appeal 518ra022-Annemre -1 a OwDcoey mJgrdfromnqB rtl)ru,ff}d„3„ nj3errca3®° mJ6ur {©ggror (S{jth 6`9nfflmfl®en 696/2oo5 onf"¢ „grf}fru`'LS& a3®us9®drJd»9fiJa8ee meeoumcJs_ aJ1®ffiggr®gi 25.i4.34, in,&®c# mmJrfldi 2.42 aredi mmpiou3o tolaarfl6)eJ 32/2o7o/,® (fujtg® m"d) 25/1436 cren) ®rffroofot{¥ago<mq8 mrmd} drJrfeoG®98ae3 c]fis8o coofdi ee®di003 ca6rtgcio ul3digl®3o ®aed ul06TOTo) 9dfrofr,go co,oamJ14sO3(mco8o st Out"~co3 "da>d3>gled ca{moo fLJc)£glco392g cmdflid3,3of7 ffl@oud3.9o@0 63(TT73o ©6n33o ulod51 ®86>S adbcra ®9q3 rLricuaf}g] a3©mcF @ee96n8 nocm ckb85l®3®S GDQjl trg8®dnd}co®jou3o. 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