Lakshmi Prasad v. Hareesh G. Panicker

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 27TH DAY OF JANUARY 2014/7TH MAGHA, 1935** **Mat.Appeal.No. 112 of 2013 (F)** **-----------------------------AGAINST THE ORDER IN OP 748/2010 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 31-10-2012** ## **APPELLANT(S)/PETITIONER:** **----------------------------------------------** **LAKSHMI PRASAD, AGED 29 YEARS D/O.PRASAD, RESIDING AT SANKARA VILASOM NEAR KUMARANELLOOR DEVI TEMPLE, KUMARANELLOOR KOTTAYAM.** **BY ADVS.SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.S.ASHOK KUMAR. SRI.R.VINU RAJ SMT.P.M.HRIDYA** ## **RESPONDENT(S)/RESPONDENT :** **----------------------------------------------------** **HAREESH G.PANICKER,, AGED 35 YEARS S/O.C.K.GOPALAKRISHNA PANICKER, VASUDEVA NILAYAM KALARCODE, ALAPPUZHA, PIN-688003.** **BY ADV. SRI.JACOB P.ALEX BY ADV. SRI.JOSEPH P.ALEX** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ANTONY DOMINIC & P.D.RAJAN, JJ. ----------------------------------Mat.A.No.112 of 2013 & I.A.No.182 of 2014 ----------------------------------Dated this the 27[th] day of January, 2014 JUDGMENT Antony Dominic, J. 1.This appeal is filed by the respondent in OP.748/10 on the file of the Family Court, Kottayam at Ettumanoor. The OP was filed by the respondent herein, the husband of the appellant, seeking dissolution of their marriage on the ground of cruelty as contemplated under section 13(1)(ia) of the Hindu Marriage Act. By the judgment under appeal, the Family Court allowed the OP and dissolved the marriage of the appellant and the respondent which was solemnized on 13.6.2005, by a decree of divorce. - 2.During the pendency of the appeal, on the request of the counsel appearing for both sides, this Court passed order dated 3.10.2013 referring the appeal for mediation at the Ernakulam Mediation Centre. Accordingly, the parties have entered into a memorandum of agreement dated 6.12.2013 settling their disputes out of court and the terms and conditions thereof which are 12 in number read thus: Mat.A.112/13 2 - (1)Parties agreed to dissolve their marriage by the decree of divorce on the ground of desertion and the respondent husband agree to withdraw the allegation of cruelty. - (2)The petition for restitution of conjugal rights filed by the wife pending before the Hon'ble Family Court as O.P.No.890/2012 Ettumanoor will be withdrawn. - (3)The permanent custody of the minor child 'Aryav' born in the wedlock will be with the mother with occasional access to the father. - (4)The father will be provided access of the child twice in a month from Saturday evening 5.00 p.m. to Sunday evening till 5.00 p.m. The respondent must record in the register that where he is taking the child. - (5)The minor child will be handed over to the father outside the compound of the residence of the mother. The appellant/mother must be allowed to talk to the child when he is in the respondent's custody one time at night before 10.00 p.m. - (6)A small register will be maintained by the parties acknowledging the receipt and return of the minor child. In summer vacation the child will be handed over for three nights (four days). - (7)Inconvenience if any, in providing access will have to be intimated at least a day prior to the day fixed for Mat.A.112/13 3 access through email. Both parties agree that they will not do anything which will ruin the spirit of this agreements. - (8)The maintenance amount of Rs.23,000/- ordered by the Family Court, Ettumanoor will prevail. The amount of maintenance will be put in a bank account maintained by the wife/mother on or before 2nd of every month. - (9)The respondent after his marriage will be restricted to take the child to his new family and will not bring about any communication or relationship whatsoever between the child and his new wife and her family. - (10)Both the parties agreed that they will open an email for the communication between them and for the child and there will not be any telephonic - conversation between the parties except on the days when the child is taken by the respondent/ father. Both the parties agreed that they will not pass any messages to each other which will create any problem through the phone. - (11)The appellant/wife in the event of her remarriage will cease her right to be maintained by the husband/respondent and in that instance there will be a reconsideration of all of the above discussed clauses. Mat.A.112/13 4 - (12)Both the parties agreed that the respondent/ husband can make calls to the child twice in a week (Tuesday and Friday before 9.00 p.m.) - 3.When the case was again taken up for consideration, this Court informed the parties that clause (1) where the parties agreed to dissolve the marriage by a decree of divorce on the ground of desertion (instead of cruelty as found by the Family Court) was unacceptable. Therefore, the parties deliberated on this issue further and finally, they have filed IA.182/14 seeking dissolution of their marriage by mutual consent as contemplated under section 13B of the Hindu Marriage Act. This IA is also supported by affidavits filed by the appellant and the respondent where also they have reiterated their decision to dissolve the marriage by mutual consent. - 4.The parties also appeared before this Court today when they again submitted that they willingly agree for dissolution of their marriage by mutual consent. Mat.A.112/13 5 - 5.In the aforesaid circumstances, we are satisfied that IA.182/14 filed under section 13B is not vitiated for any fraud, coercion or compulsion and that the marriage between the appellant and the respondent is liable to be dissolved under section 13B of the Hindu Marriage Act. - 6.However, under sub-section 2 to section 13B, if a petition is filed under section 13B(1), the motion of both the parties is to be made not earlier than six months after the date of presentation and only then, the court shall, on being satisfied after hearing the parties and after making such inquiries as it thinks fit, pass a decree declaring the marriage to be dissolved with effect from the date of the decree. The question is whether that requirement of waiting for a period not less than six months is to be complied with in this case. - 7.On this issue, we heard the counsel for both sides, who requested for an early order in this case. Mat.A.112/13 6 8.As we have already stated, the marriage between the appellant and the respondent was solemnized on 13.6.2005. By judgment dated 31.10.2012 passed by the Family Court, Kottayam in OP.748/10, the marriage was dissolved by a decree of divorce on the ground of cruelty and it is challenging that judgment, this appeal is filed, in which, based on compromise between the parties, they have agreed to dissolve their marriage on mutual consent. Therefore, essentially, all that this court is required to do in this proceedings is to convert the decree of divorce based on the ground of cruelty into a decree of divorce based on mutual consent, as provided under section 13B of the Hindu Marriage Act. - 9.It is the settled position in law that the six months' period in the second motion is prescribed in the Act to give an opportunity to the parties to see whether the marriage can be saved. In so far as this case is concerned, parties have already parted their ways and the compromise only modifies the ground of divorce from cruelty to mutual consent. In such a situation, it is unnecessary to defer passing of the Mat.A.112/13 7 decree on the petition filed under section 13B. This very question came up for consideration of this Court in Visalakshi v. Shivaraman Nair [1991 (1) KLT 910] where, this Court held thus in paragraphs 4 and 5: “4. The question naturally arising is whether this court can pass a decree under S.13B of the Hindu marriage Act without following the formalities prescribed in the provision. According to S.13B, on a petition begging so presented alleging that the spouses have been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved, the court shall, on being satisfied, after hearing the parties and after making such enquiries which 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 on the motion of both the parties made not earlier than six months after the date of the presentation of the petition and not later than 18 months after the said date provided that the petition is not withdrawn in the meantime. 5. The provision has been enacted to water down the rigour of the requirements of the provisions of the Hindu Marriage Act and to enable spouses to part amicably where the marriage has broken down and the spouses cannot be reconciled. Break-down of marriage Mat.A.112/13 8 has not been accepted as a ground sufficient to pass a decree for divorce before the incorporation of S.13B. The purpose of the provision is obviously to save the spouses from the ruinous consequences of marriages which have broken down and cannot be saved. The legislative policy disclosed in the requirement that the court should wait for six months is to give an opportunity to the parties to see if the marriage can be saved. That is why the legislature prescribed postponement of the passing of the order on the petition filed under S.13B of the Act. In cases like the present one where the parties are before the appellate court after having fought a battle in the trial court and where the court is satisfied that the parties had sufficient time to think over their own future and have come to a definite conclusion that the marital relationship has to be terminated, in our opinion, the court should take a liberal view of the procedural requirement and refrain from insisting on the waiting period of six months. The parties have been residing separately for the last over five years and the wife has already encashed the cheque given by the husband in terms of the compromise. This is yet another reason which would persuade the court not to subject the parties to a fresh waiting period of six months. We find that such a liberal view has been taken by a Division Bench consisting of Justice D.S.Tewatia and Justice M.M.Punchhi (as he then was) of the Punjab and Haryana High Court in Krishna Kjhetarpal v. Satish Lal (AIR 1987 P&H 191). In the light of the above principle and in the peculiar facts and circumstances of the case, we are satisfied that Mat.A.112/13 9 this court is not only entitled to pass a decree, but has a duty to pass a decree without insisting on the waiting period of six months.” - 10.Again, the issue came for consideration before another Division Bench of this Court in Sreelatha v. Deepthy Kumar [1998 (1) KLT 195], where, in an identical circumstance, six months' time provided under section 13B was waived. The same matter was considered by another Division Bench of this Court in Manojakumari v. Bhasi [1988 (2) KLT 858], where, it was held thus in paragraph 5: “5. On reading the petition and on hearing the counsel on both sides, we are satisfied that the marriage between the parties had irretrievably broken and it is practically and emotionally dead. In such circumstances the life of the spouses shall not be allowed to put in perpetual agony and despair. When such circumstance is brought to the notice of this Court, it is for it to find out a final solution on principles of justice and equity. Now, the parties are before us after a prolonged litigation mutually agreeing not to live in unison but to separate themselves permanently. If that be the welfare of the parties, this Court need not stand against it. The procedural requirement can be waived in view of the Mat.A.112/13 10 mutual consent recorded in writing. In view of the observation in **Visalakshi** 's case, supra, we are not insisting for the procedural requirements in this case. We therefore, propose to decide this petition seeking a decree for divorce on mutual consent by ourselves and not by remitting it to the trial court. We also dispense with the waiting period of six months as required for the culmination of the divorce process.” - 11.Similar view has been taken by the Bombay High Court in Rakesh Haruskhbhai Parekh v. The State of Maharashtra [AIR 2011 (Bom) 34] and Santosh Lalmani Tiwari v. Aaradhana Devi Santosh Tiwari [AIR 2013 (Bom) 12] and the Gujrat High Court in Uday Narendrabhai Bhatt v. Shivangi Narendrabhai Shastri [AIR 2011 (Guj) 156]. - 12.In the light of the above legal principles, we waive the procedural requirements of section 13B(2) and accepting IA.182/14, a decree is passed dissolving the marriage between the appellant and the respondent under section 13B of the Hindu Marriage Act with effect from today. Mat.A.112/13 11 - 13.We also record condition Nos.2 to 12 of the memorandum of agreement dated 6.12.2013, entered into between the parties on the intervention of the Ernakulam Mediation Centre, settling the disputes between them and direct that the same will form part of this judgment. Appeal and IA are ordered accordingly. Sd/ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb. True Copy PS to Judge