Mat Appeal No. 199 of 2008 & RP(FC) No. 121 of 2008, High Court of Kerala at Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 Mat.Appeal.No. 199 of 2008 ---------------------------OP.439/2006 of FAMILY COURT, THIRUVALLA .................... PETITIONERS: --------------- 1. ANANT V.PANICKER, S/O.VIDHADHARAN SENIOR ENGINEER (PRODUCTION) DOSHION EXCHANGE & CHEMICAL INDUSTRIES LTD 24-25 PHASE II,G.D.C ESTATE,VATMA AHEMEDABAD 382 445. 2. VINODHINI C.@ VINODHINI VIDHYADHARAN 7A (A/7) MANOR KUNJU SOCIETY, BEHIND DHANRAJ HOUSING MANIYASA, NINAGAR (E) AHEMEDABAD, GUJARAT 380 008 BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.D.P.RENU RESPONDENT: --------------- DHYANYAMOL.R, W/O. ANANT V. PANICKER VALUMANNIL HOUSE PARIYARAM PO., EALANTHOOR , PATHANAMTHITTA. ADV. SRI.K.HARILAL FOR R1 SRI.R.GOPAN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2009, ALONG WITH RPFC NO. 121 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO. 760/2008 IN MAT APPEAL NO. 199/98 ## DISMISSED. 6-10-2009 SD/-R. BASANT, JUDGE SD/-M.C. HARI RANI, JUDGE TRUE COPY KS. ## **R.BASANT & M.C. HARI RANI,JJ** ============================== ## **MAT APPEAL NO. 199 OF 2008 &** ## **R.P.(F.C)NO.121 OF 2008** ============================ ## **DATED THIS THE 6TH DAY OF OCTOBER 2009** ## **JUDGMENT** ## **Basant,J.** Mat Appeal No. 199/2008 has been filed by the husband and mother-in-law of the respondent challenging an order directing payment of amounts to the respondent. R.P.(F.C.) No.121/2008 is filed by the husband against his wife and minor daughter claiming to be aggrieved by a direction under Section 125 of the Code of Criminal procedure to pay maintenance to them at the rate of Rs.2,500/- and Rs.1,500/- per mensem from the date of the petition. These matters have been pending before this Court from 2008. In the course of the pendency of the proceedings, efforts were made to settle the disputes. The parties were referred to the Lok Adalat. But they could not succeed to settle the dispute before the Lok Adalat. Sublime MAT APPL.199/08 & RP(FC)121/08 2 counsel appear to have continued the efforts to bring the parties for settlement and it is now reported that all outstanding disputes have been settled. Joint compromise statement has been filed as I.A.No.2636/2009 incorporating the terms of settlement. That compromise petition is duly signed by the parties and is countersigned by their counsel. An amount of Rs.12.5 lakhs has been paid by the husband and received by the wife and child in full settlement of all their claims. 2. Both counsel pray that disputes having been settled, the R.P.(F.C)can now be allowed and the impugned order can be set aside as the revision petitioner-father has already made arrangements for maintenance of his wife and child. In so far as Mat appeal No.199/2008 is concerned, it is submitted that a total amount of Rs.12.5 lakhs has already been paid and this is received by the claimant/wife in complete satisfaction of the impugned order in the Mat Appeal. In these circumstances, it is prayed that R.P.(F.C)No.121/2008 and Mat Appeal No.199/2008 may be allowed and the impugned orders may be set aside. 3. There is one more prayer made by the parties. They MAT APPL.199/08 & RP(FC)121/08 3 submit that as part of the settlement, it is decided that the marriage shall be dissolved by mutual consent. For this purpose, they have filed I.A.No.2637/2009 under Section 13 B of the Hindu Marriage Act. Affidavits have been filed by the spouses. The averments in the petition and the affidavits filed by the spouses confirm that they have been residing separately for a period exceeding two years now; that they have found joint residence impossible and that they have agreed that the marriage must be dissolved by mutual consent. They have further filed petitions praying that this Court may be pleased to dispense with the requirement of the second motion after six months under Section 13 B(2) of the Hindu Marriage Act. In these circumstances, it is prayed that while allowing Mat Appeal No.199/2008, there may be an order for dissolving the marriage between the spouses under Section 13 B of the Hindu Marriage Act. 4. This court entertained a doubt whether such a relief can be granted in Mat Appeal No.199/2008 as the O.P. was filed not claiming any matrimonial relief. Only monetary relief was MAT APPL.199/08 & RP(FC)121/08 4 claimed in O.P.No.439/2006 against which Mat Appeal No.199/2008 is filed. The learned counsel for the parties submit that all outstanding disputes have been settled and that they had settled the disputes in the hope that a quietus can be given to all outstanding disputes. In the interests of justice and in the peculiar facts and circumstances of the case, this Court may invoke its inherent powers and pass orders dissolving the marriage under Section 13 B of the Hindu marriage Act, pray counsel. Counsel rely on the following precedents to bring to the notice of the Court that appellate jurisdiction can be invoked to grant such a relief notwithstanding the fact that proceedings before the court below were not initiated for any such relief. 1. Aliyar v. Pathu [1988(2)K.L.T. 446] paragraph 20 2. Sujit Pal v.Prabir Kumar Sun[AIR 1986 Calcutta 220] paragraphs 8 to 12 3. Delhi Development Authority v. Skipper Construction Co. (P)Ltd.[AIR 1996 S.C.2005] paragraphs 21 and 22 4. Joseph Philip v. Mariamma Chacko[1987(2)K.L.T.924] paragraph 18 MAT APPL.199/08 & RP(FC)121/08 5 - 5.T.Vinod v. Manju S.Nair,[2008(1)KLJ 525] = 2008(2)KLT S.N.2 paragraph 2 6. Sreelatha v. Deepthy Kumar [1998(1)K.L.T.195] 7. Aviral Bhatla v. Bhawna Bhatla [2009(2)KLJ 116(SC) 5. We have considered the above precedents. We note that in the interests of justice, such extra ordinary inherent jurisdiction deserves to be invoked in this case. We do not intend to lay down any precedent. But in the exceptional facts and circumstances of this case, we are persuaded to agree that an order dissolving marriage under Section 13 B of the Hindu Marriage Act can be granted in favour of the spouses notwithstanding the fact that such relief or any other ancillary relief was not claimed in the O.P. 6. In the result, a) R.P.(F.C)No.121/2008 is allowed. The impugned order is set aside. b) Mat appeal No.199/2008 is allowed. The impugned order is set aside. c)I.A.No.2764/2009 and I.A.No.2813/09 are allowed. MAT APPL.199/08 & RP(FC)121/08 6 Joint prayer made by the parties in the affidavits filed by them to waive the period of six months under Section 13 B(2) is allowed. d)I.A.No.2762 of 2009 is allowed. An order is passed under Section 13 B of the Hindu Marriage Act dissolving the marriage between the first appellant and the respondent solemmnised on 6-9-2004 . e) The joint compromise entered into between the parties dated 15-9-2009(I.A.No.2636/09) shall be annexed to this common order/judgment. ## **R. BASANT, JUDGE** ## **M.C. HARI RANI,JUDGE** ## **ks.** MAT APPL.199/08 & RP(FC)121/08 7