Manoj A.K v. Lini M., Mat.Appeal Nos.746 & 774 of 2019, High Court of Kerala

ml #,\qu, IN IRE HIGH COURT OF KERALZI AT ERNAKULZD4 ## PRESENT TEIE ElcINOuRABLE in. dusTIch= ANII, K.NARENDRAN & THE HCINouRABLE in. TuSTIch= P.G. ArlTHKtnmR THURSDAy, THE 5TH DAy OF .ANunRy 2o23 / 15TH rousRA, 1944 RAT.APPEAL NO. 746 0F 2019 AGAINST THE JUDGB4ENT AND I)ECREE DATED 05.04.2019 IN O.P.NO.710F 2018 0N THE FILE OF TEE FAMII.Y ## COURT , KOZHIKODE ## APPElillANT/RESPONDENT: ENOJ A.K. , (aeDREss oF THE REspoNDENT wRONGL¥ sHowN As ARIJKANDATHIL, P.C.PAILAM IN 0.P.NO.71/2018) AGEI> 43 yEARs , s/O.vElnyuDEN, Kul[ANGZLRAKKANDI HOUSE, KAKKUR, NARIKKUNI.P.O. , KOZHIKODE, PIN -673 585. BY JDVS . M. pROMODI] KuimR SMT. m¥A cHANDRZDi ## RESPONDENT/PETITIONER: LINI M. AGED 32 ¥EARs, D/o.inDHAVAN, MINI NIVIIS, THARUPPAKKZENI)I , KAICKUR. P.0. , KOZHIKODE -673 613. BY ADV SMT.P.A.REZIYA THIS RATRIMONIAL APPEAI. HAVING CORE UP FOR FINAL HEARING 0N 05.01.2023, ALONG WITI] afat.Appeal.774/2019, THE COURT ON THE SARE DAY DEIIIVERED THE F0IiLOWING: Mat.Appeal Nos.746 & 774 of 2019 IN THE HIGH COURT 0F RERAIA AT ERNAKULZD4 PRESENT TEE HONOURABI.I MR. JUSTICE ANIL K.NARENDRZDl & THE HONOuRABI.E rm. eusTlcE p.G. ArlTHKUMZLR THt]RSDA¥, THE 5TH DAY oF -ANunR¥ 2o23 / 15TH pousIA, 1944 RAT.APPEAL NO. 774 0F 2019 AGIAINST THE JUDGb4ENT AND DECREE DATED 05.04.2019 IN 0.P.NO.1172 0F 2017 0N THE FILE 0F THE FAMII.Y COURT , KOZH IKODE ## APPELILANT/PETITIONER: ENOJ A.K. ' AGED 43 YEARS S/0.VEIAYUDHAN, KUIIANGARAKKANDI HOUSE , KAKKUR, NARIKKUNI P.0., KOZHIKODE, PIN -673 585. BY ADVS. M. PROMOI)H KuimR SnIT . RA¥A CHANI)RZDi ## RESPONDENT/RESPONDENT: LINI M. , AGEI> 32 yEARs, D/O.iml]HA:VAN, MINI NlvAs, TttARuppAKKANDI, KAKKUR p.O. , rozHIKODE -673 613. THls mTRIMONIAI, AppEAI. HAvlNG COME up FOR FIHAI. HEARING ON 05.01.2023, AI.ONG WITI] Mat.Appeal.746/2019, THE COURT 0N THE SAIE DAY DELIVERED THE FOLLOWING: 3 Mat.Appeal Nos.746 & 774 of 2019 ## JUDGMENT Anil K. Narendran, J. Since the parties are one and the same, these matters are heard together and are being disposed of by this common J.udgment. 2. Mat. ADDeal No.746 of 2019:-The appellant is the respondent in O.P.No.71 of 2018 on the file of the Family Court, Kozhikode, which is one filed by the respondent herein-wife claiming past maintenance. That original petition was allowed by the judgment and decree dated 05.04.2019, whereby a decree was passed in favour of the respondent herein allowing her to realise a sum of Rs.1,44,000/- (Rupees one lakh forty four thousand only) as past maintenance allowance at the rate of Rs.4,000/- per month for 36 months from 02.01.2015 to 02.01.2018, from the appellant herein and his assets. 3. Challenging the judgment and decree dated 05.04.2019 in O.P.No.71 of 2018, the appellant has approached this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984, along with C.M.Appl.No.1 of 2019 for condonation of delay. c2- 4 Mat.Appeal Nos.746 & 774 of 2019 4. Mat. ADDeal No.774 of 2019:- The appellant has filed O.P.No.1172 of 2017 before the Family Court, Kozhikode, against the respondent herein-wife seeking a decree of dissolution of the marriage solemnised between them on 03.02.2014, on the ground of cruelty and desertion. That original petition ended in dismissal by the I.udgment and decree dated 05.04.2019. Feeling aggrieved, the appellant I has filed this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984, along with C.M.Appl.No.1 of 2019 for condonation of delay. 5. During the pendency of these appeals, the parties were referred for mediation before the Ernakulam Mediation Centre, in the premises of this Court, on 18.10.2022. The parties have settled the disputes in mediation and a memorandum of settlement agreement dated 03.11.2022 is placed on record along with the report dated 06.12.2022 of the Mediator. 6. On 07.12.2022, when these appeals weretaken up for consideration, after arguing for sometime, the learned counsel on both sides submitted that since the parties have **==> picture [45 x 29] intentionally omitted <==** **----- Start of picture text -----**<br> cZ<br>**----- End of picture text -----**<br> 5 Mat,Appeal Nos.746 & 774 of 2019 settled the entire disputes in mediation, they shall file a joint application for divorce on mutual consent, along with an application under Section 138(2) of the Hindu Marriage Act, 1955, to waive the statutory time limit. 7. Heard the learned counsel for the appellanthusband and also the learned counsel for the respondent-wife. 8. 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 138(2) of the Act before allowing divorce on mutual 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 138(2), in addition to the statutory period of one year under Section 138(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; **==> picture [45 x 28] intentionally omitted <==** **----- Start of picture text -----**<br> Ca<br>**----- End of picture text -----**<br> 6 Mat.Appeal Nos.746 & 774 of 2019 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." 9. On 03.01.2023, the parties have filed I.A.No.1 of 2023 and I.A.No.2 of 2023 in Mat.Appeal No.744 of 2019 as Bench Mark, which are supported by individual affidavits of both parties, under Section 138 of the Act. 10. We have interacted with the parties. 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. The appellant and the respondent are living separately immediately after the marriage from the year 2014 onwards. 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 provided under Section 138(2) of the Act 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 under Section 138(2) of the Act, the parties can be granted a decree of divorce by mutual consent. c2- 7 Mat.Appeal Nos.746 & 774 of 2019 11. In such circumstances, I.A.No.1 of 2023 in Mat.Appeal No.774 of 2019 is allowed by granting a decree of divorce by mutual consent under Section 138 of the Act, by dissolving the marriage solemnised between the appellanthusband and respondent-wife on 03.02.2014 and I.A.No.2 of 2023 in Mat.Appeal No.774 of 2019 is allowed by waiving the statutory period of six months provided under.Section 138(2) of the Act. The appeals are accordingly allowed in terms of the terms and conditions contained in the memorandum of settlement agreement dated 03.11.2022, except clause No.6, which shall form part of this ].udgment. ## Sd/- ANIL K. NARENDRAN, JUDGE Sd/P.G. AJITHKUMAR, JUDGE dkr ## BEFORE THE HONOURABLE HIGH COURT 0F KEELA # AT ERNAKULAM ## MLa_t A_D_Deal Nos 746/2019 & 774/_2g±g &RP Manoj A.K Appellant Lini M Respondent ® ¥E%D=:°p¥oN:D:%D%±:0==EE=::RE=oEN=±§:¥=TE2H=o:::EUsN2D4E: 2= CoTF[°TNH:9K°EFRA:: Both parties have agreed to settle their dispute on the following terms and conditions: 1. Both parties have decided to settle their claims finally for an amount of Rs.30,000/- (Rupees Thirty thousand only) & 11 (eleven) sovereigns of gold with divorce by mutual consent. 2. Appellant Mano]. (in Mat Appeai No.746/20]9) has agreed to give the above said amount of Rs.30,000/- (Rupiies Thirty thousand only) & 11 (eleven) sovereigns of gold to the respondent herein, for which Lini has agreed to co-operate with the proceeding to dissolve the martital relationship. 3. Respondent Lini M has agreed that there will not be any further claims including the claim for future maintendnce against the Appellant whatsoever, in the future also, as all claims cigainst the Appellant has been satisfied by this settlement agreement. nctnD"t^Gap LiNi`-n alir KeralastateMeui„trr„„dtior,centfe High Court of Kerala Kochi -682 031 e -2- 4. The Appellant Manoj has agreed to give the above said amount of Rs.30,000/- (Rupees Thirty thousand only) & 11 (eleven) sovereigns of gold the Respondent Lini on or before 22/11/2022. 5. The Appellant has agreed that he is relinquishing his claim for return of his 4 sovereigns of Thalimala from the respondent. 6. The Respondent has no objection in allowing Mat Appeal No.774/2019 and thereby dissolving the marriage on the basis of this Agreement. Both parties have agreed to pray this Hon'ble High Court of Kerala to pass appropriate orders on the basis of this settlement agreement. Dated this tile 3rd day of November, 2022. > ADDellant ResDondent > LiniM dz>[rfuca] #:\oJ£:J# £irfu^--I[fro] ir` 6- cfuleul c€ee:\OfQs ``v\ Its YnchLrtyj Counsel for the Appellant Counsel for the Respondent ## _V_ERIFICATIQ_H We, the parties above named, do hereby solemnly state and declare that what is contained in paragraphs 1 to 6 are true to the best of our knowledge, information and belief. Dated this the 3rd day of November, 2022. > ADDellant ResDondent Manoj A.K ap LiniM dzz Ei=, kerala State Mediation and Conciliation Cenm High Court of Kerala Kochi -682 031