K.K. Mohanan v. Usha P.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935 ## **Mat.Appeal.No. 211 of 2013 (D)** AGAINST THE ORDER DATED 31.10.12011 IN OP.12/2011 ON THE FILE OF THE FAMILY COURT, KALPETTA APPELLANTS/PETITIONERS: ---------------------------------------- 1. K.K.MOHANAN S/O.NARAYANAN NAIR, NEERVARAM P.O., PANAMARAM AMSOM MANANTHAVADY TALUK, WAYANAD DISTRICT. 2. USHA.P., D/O.PURUSHOTHAMAN PILLAI, PULIKKAL HOUSE VELLANCHERY P.O., PANAVALLY, KARTIKULAM THIRUNELLY, MANANTHAVADY, WAYANAD DISTRICT. BY ADV. SRI.V.SHYAM RESPONDENT/RESPONDENT: - ---------------------------- NIL THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 26-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** **---------------------------------------------------Mat. Appeal No. 211 of 2013 D ---------------------------------------------------Dated this the 26[th] day of March, 2013** ## **JUDGMENT** ## **K.T.Sankaran, J.** The petition filed by the appellants under Section 13B of the Hindu Marriage Act, 1955 was dismissed by the Family Court, Kalpetta on two grounds: (1) The averments in the application are not sufficient to grant a decree of divorce; and (2) Though the parties moved the application after six months and filed affidavits stating that they wanted divorce, they were not present on the subsequent dates. 2. Appellant No.1 is a coolie. It is stated that he is working in Coorg in Karnataka State. The marriage of the parties took place on 8.12.1991 and two children were born in that wedlock. The children were aged 17 and 16 years at the time of filing the petition. It is averred in the petition that since 25.5.2007 the appellants were residing separately and they had no contact with each other. It is ## **Mat. Appeal No. 211 of 2013 D** :: 2 :: also stated in the application that the parties agreed to dissolve the marriage by mutual consent. The further averment in the application is that their relationship “is irreparably broken down”. The application was posted after six months. The parties to the marriage moved separate affidavits reiterating their stand for a divorce. They were present before Court. The parties underwent counselling. The counselling did not succeed and they could not agree to unite. It would appear that the Court posted the case for arguments. It is stated in the order that the parties did not appear thereafter and the counsel also failed to appear on many posting dates. 3. The court below dismissed the application under Section 13B of the Hindu Marriage Act on the aforesaid two grounds. 4. The parties are Hindus and they are governed by the Hindu Marriage Act, 1955. Section 13B of the Hindu Marriage Act 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 ## **Mat. Appeal No. 211 of 2013 D** :: 3 :: solemnised 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. (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.” 5. The requirement of sub-section (1) of Section 13B of the Hindu Marriage Act is that the parties to the marriage are 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. It is specifically stated in the application under Section 13B of the Hindu Marriage Act that the ## **Mat. Appeal No. 211 of 2013 D** :: 4 :: marital relationship was “irreparably broken down”. The various averments in the application would clearly indicate that the parties to the marriage were not able to live together. The other two ingredients of Section 13B(1) are admittedly available. 6. It is true that necessary averments should be made in the application under Section 13B of the Hindu Marriage Act, in order to ascertain whether the application for divorce was filed as a result of collusion or with a fraudulent intention. At the same time, it is not necessary to aver in the application, word by word the ingredients of Section 13B(1) of the Hindu Marriage Act. It is sufficient if the averments indicate that the ingredients are made out. The various averments in the application along with the averment that the relationship was “irreparably broken down” would clearly indicate that the parties could not live together. 7. Section 13B of the Hindu Marriage Act was inserted by the Amendment Act 68 of 1976. The section was introduced to liberalise the concept of divorce by mutual consent. A petition under Section 13B of the Hindu Marriage Act should not be dismissed on a hyper-technical approach, thereby making the life of the parties, who ## **Mat. Appeal No. 211 of 2013 D** :: 5 :: decided to separate, miserable. Dismissal of the application under Section 13B of the Hindu Marriage Act on a technical ground that it is not specifically averred that the parties have not been able to live together, would have the result of compelling the parties to continue the marriage against their will and nobody would be benefited by such a course being adopted by the Court. It is true that the Court must be satisfied that the ingredients of Section 13B are made out. A conclusion in that regard is to be reached by taking into account all the averments in the application, the affidavits filed by the parties and, if necessary, by directing the parties to adduce evidence. If the Court thought that further elucidation was necessary, nothing prevented the Court from examining the parties on the date when they filed the affidavit and appeared before Court. Instead of doing so, the Court adjourned the case for hearing. No further hearing was required and what was required was only to satisfy whether the application is liable to be allowed or not. Instead of applying mind, the Court mechanically adjourned the case and blamed the parties for not appearing thereafter. The parties have undergone counselling. They have waited for six months, they appeared before Court and they filed affidavits reiterating their demand for divorce. As evident from the pleadings, the parties are coolies. If the parties ## **Mat. Appeal No. 211 of 2013 D** :: 6 :: are directed to appear every now and then in an application under Section 13B of the Hindu Marriage Act, the very purpose of introduction of the section would be defeated. ## 8. In **Harikumar** v. **Sudha.B.** (2012 (3) KLT 888), we held thus: “8. ..... While dealing with an application under Section 13B, the Court must see the over all situation and the facts and circumstances of the case, the request made by the parties, their desire to dissolve the marriage, their miseries in continuing the marital relationship, the welfare of the parties and their future plans in life. The Court should not approach the matter with suspicion and with a presumption that there may be collusion between the parties. If an application under Section 13B, which actually merits acceptance, is dismissed on a hyper-technical approach, the result would be compelling unwilling parties to continue the marital relationship. Certainly, that is not the purpose and object of Section 13B of the Hindu Marriage Act.” 9. We are satisfied that necessary averments are available in the application under Section 13B of the Hindu Marriage Act. We are of the view that the court below was not justified in dismissing the application. ## **Mat. Appeal No. 211 of 2013 D** :: 7 :: Accordingly, we allow the Matrimonial Appeal, set aside the order passed by the court below and allow O.P.No.12 of 2011. The marriage between K.K.Mohanan and Usha.P. (the appellants - petitioners in the Original Petition) is dissolved by a decree of divorce with effect from today. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/