Mat.Appeal No. 493 of 2019 & con.cases (Unnikrishnan Elayath C.N v Vineetha C.M & connected matters)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022/30TH KARTHIKA, 1944** **MAT.APPEAL NO. 493 OF 2019 AGAINST THE JUDGEMENT DATED 05.04.2019 IN O.P.NO.557 OF** **2016 OF THE FAMILY COURT, MUVATTUPUZHA APPELLANT/PETITIONER:** **UNNIKRISHNAN ELAYATH.C.N, AGED 46 YEARS S/O.NEELAKANDAN ELAYATH, CHIRAMALAILLAM, PAZHANGANAD KARA, KIZHAKKAMBALAM, VILLAGE, KUNNATHUNADU TALUK.** **BY ADVS.K.J.MANU RAJ K.VINAYA RAVI KRISHNAN** ## **RESPONDENT/RESPONDENT:** **VINEETHA.C.M, D/O.MANOHARAN ELAYATH, CHALAYIL ILLAM, THIRUMARADY, KAKKOOR KARA, MUAVATTUPUZHA TALUK, PIN-686662.** **BY ADVS.SRI.S.JIJI SRI.A.R.ANI** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION** **ON 21.11.2022, ALONG WITH Mat.Appeal.391/2021, 416/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -:2:- Mat.Appeal No.493 of 2019 & con.cases **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022/30TH KARTHIKA, 1944 MAT.APPEAL NO. 391 OF 2021** **AGAINST THE ORDER DATED 09.03.2021 IN I.A.NO.1786 OF 2019 IN O/P.NO.123 OF 2016 OF THE FAMILY COURT, MUVATTUPUZHA APPELLANT/APPLICANT/PETITIONER:** **UNNIKRISHNAN ELAYATH C.N, AGED 47 YEARS S/O NEELAKANDAN ELAYATH, RESIDING AT CHIRAMAL ELLAM, PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK, PAZHANGANAD P.O.ERNAKULAM DISTRICT-683 562. BY ADVS.K.J.MANU RAJ R.RENJITH K.VINAYA RAVI KRISHNAN** **RESPONDENTS:** **VINEETHA C.M, D/O MANOHARAN ELAYATH, RESIDING AT CHALAYIL ELLAM, KAKKOOR, KARA, KAKKOOR P.O., THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 662. BY ADVS.S.JIJI M.M.BABY** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 21.11.2022, ALONG WITH Mat.Appeal.493/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -:3:- Mat.Appeal No.493 of 2019 & con.cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022/30TH KARTHIKA, 1944** ## **RPFC NO. 416 OF 2015** **AGAINST THE ORDER DATED 03.10.2015 IN M.C.NO.18 OF 2015** **OF THE FAMILY COURT, MUVATTUPUZHA** **REVISION PETITIONER:** **UNNIKRISHNAN C.N, AGED 45 YEARS S/O. NEELAKANDAN ELAYATH, CHIRAMALA ELLATH, PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE.** **BY ADVS.K.J.MANU RAJ K.VINAYA RAVI KRISHNAN** **RESPONDENTS:** - **1 VINEETHA C.M, AGED 35 YEAERS, D/O. MANOHARAN ELAYATH, CHALAYIL ELLATH, THIRUMARADY VILLAGE, KAKKOOR KARA, MOOVATUPUZHA TALUK - 686 661.** - **2 MIDHUN, AGED 9 YEARS (MINOR), S/O. VINEETHA, REPRESENTED BY HIS MOTHER AND GUARDIAN, VINEETHA, THE IST RESPONDENT, CHALAYIL ELLATH, THIRUMARADI VILLAGE, KAKKOOR KARA,MOOVATTUPUZHA.** - **3 MIDHILESH, AGED 1-1/2 YEARS(MINOR),S/O.VINEETHA, REPRESENTED BY HIS MOTHER AND GUARDIAN VINEETHA, THE IST RESPONDENT, CHALAYIL ELLATH, THIRUMARADI VILLAGE, KAKKOOR KARA, MOOVATTUPUZHA.** - **BY ADVS.SRI.S.JIJI SMT.M.M.BABY** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.11.2022, ALONG WITH Mat.Appeal.493/2019 AND CONNECTED CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -:4:- Mat.Appeal No.493 of 2019 & con.cases ## **JUDGMENT/ORDER** ## Anil K. Narendran, J. Since common issues are raised, these appeals and revision petition are heard together and are being disposed of by this common order/judgment. 2. Mat.Appeal No.493 of 2019:- The appellant is the petitioner in O.P.No.557 of 2016 on the file of the Family Court, Muvattupuzha, which is a petition filed against the respondent herein-wife seeking a decree of divorce on the ground of desertion, invoking the provisions under Section 13(1)(ib) of the Hindu Marriage Act, 1955. By the judgment and decree dated 05.04.2019, the said original petition stands dismissed. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 2.1. On 08.07.2019, when this appeal came up for admission, this Court admitted the matter on file and issued notice by speed post to the respondent. 3. Mat.Appeal No.391 of 2021:- The appellant is the petitioner in O.P.No.123 of 2016 on the file of the Family Court, Muvattupuzha, an original petition seeking permanent -:5:- Mat.Appeal No.493 of 2019 & con.cases custody of two minor children and for appointing him as their guardian, which was disposed of by the judgment and decree dated 11.08.2017, by way of a compromise decree. Thereafter, the appellant-father filed I.A.No.1786 of 2019 in O.P.No.123 of 2016 seeking an order to modify the said decree, by granting him the permanent custody of the minor children. The said application was disposed of by the order dated 09.03.2021 of the Family Court, Muvattupuzha, whereby the mother was directed to give the custody of the minor child, Midhilesh to the father on all second Saturdays from 11.00 a.m. to 3.00 p.m. on the ensuing Sunday. All other terms and conditions stipulated in the compromise decree were ordered to be remain in force. Challenging the said order dated 09.03.2021 in I.A.No.1786 of 2019 in O.P.No.123 of 2016, the appellant is before this Court in this appeal invoking the provisions under Section 19 (1) of the Family Courts Act, 1984. 3.1. On 22.07.2021, when this appeal came up for admission, this Court admitted the matter on file and issued urgent notice to the respondent by speed post. 4. R.P.(FC)No.416 of 2015:- The petitioner is the respondent in M.C.No.18 of 2015, which is an application filed -:6:- Mat.Appeal No.493 of 2019 & con.cases by the respondents herein before the Family Court, Muvattupuzha seeking maintenance, invoking the provisions under Section 125 of the Code of Criminal Procedure, 1973, which was allowed by the order dated 03.10.2015, whereby the respondent-husband was directed to pay a monthly maintenance of Rs.4,000/- to the 1[st] petitioner-wife, Rs.3,000/- and Rs.1,500/- each to the 2[nd] and 3[rd] petitionersminor children, from the date of petition. The 1[st] petitionerwife was allowed to receive the maintenance amount for the 2[nd] and 3[rd] petitioners-minor children. Feeling aggrieved by the said order, the petitioner-husband is before this Court in this revision petition, invoking the provisions under Section 19(4) of the Family Couts Act, 1984. 4.1. On 13.11.2015, when this revision petition came up for admission, this Court admitted the matter on file and issued notice to the respondents. In Crl.M.A.No.6377 of 2015, this Court granted an interim order to keep in abeyance the execution of the impugned order, on condition that the petitioner shall deposit Rs.35,000/- before the court below, within one month and continues to deposit 80% of the maintenance ordered by the court below on or before the 5[th] of -:7:- Mat.Appeal No.493 of 2019 & con.cases every month. On such deposit, the 1[st] respondent was granted liberty to withdraw the same. 5. By the order dated 02.11.2021 in Mat.Appeal Nos.493 of 2019 and 391 of 2021 and the order dated 09.11.2021 in R.P.(FC)No.416 of 2015, the matters were referred for mediation and both parties were directed to appear before Ernakulam Mediation Centre, in the premises of this Court, on 17.11.2021. However, the matter could be settled in mediation. 6. On 26.08.2022, when these matters came up for further consideration, another Division Bench of this Court passed the following order; “Both parties are present before us. They agreed to resolve all their disputes in the following manner; They will file a mutual petition invoking Section 13B of the Hindu Marriage Act. The mutual petition is agreed on condition that the husband Unnikrishnan Elayath will pay Rs.7,00,000/- on or before 20.10.2022, in full and final settlement of all claims of the wife and children towards their maintenance. Besides, the appellant also agreed to pay Rs.1,00,000/- for the maintenance and welfare of the minor child namely, ‘Midhilesh’, out of his retirement benefits on his superannuation. We adjourn this matter to 20.10.2022. If the husband is able to raise the money before 20.10.2022, they can move this Court for an -:8:- Mat.Appeal No.493 of 2019 & con.cases early hearing. In regard to the custody of the children, the parties agreed to follow the existing directions of the Court.” 7. On 20.10.2022, when these matters were taken up for consideration, the learned counsel for the respondents submitted that the parties have already settled the matter in mediation and the execution of mediation settlement agreement will take place within a week. 8. On 27.10.2022, the appellant-husband and the 1[st] respondent-wife in Mat.Appeal No.493 of 2019 have filed I.A.No.1 of 2022, an application filed under Section 13B of the Hindu Marriage Act, 1955 seeking a decree of divorce by mutual consent dissolving the marriage solemenised between them on 17.04.2004, after waiving the statutory period of six months under Section 13B(2) of the Act. The application is supported by individual affidavits dated 26.10.2022 sworn to by the 1[st] petitioner-husband and the 2[nd] petitioner-wife. Paragraphs 8 to 13 of the application read thus; “8. That now the entire matter between the parties is settled out of Court. The 1[st] petitioner has given Rs.7,00,000/- to the 2[nd] petitioner by cheque No.293986 dt.26.10.2022 drawn on State Bank of India, Edathala Branch towards full and final satisfaction of her all claims -:9:- Mat.Appeal No.493 of 2019 & con.cases ## against the 1[st] petitioner. 9. The 1[st] petitioner has deposited the maintenance to the 2[nd] petitioner and the minor children till August 31[st] 2022 before the Family Court, Muvattupuzha on 08.08.2022. The 1[st] petitioner shall pay an additional amount of Rs.1,00,000/- to the 2[nd] petitioner towards the maintenance of the minor son Midhilesh from the retirement service benefits of the 1[st] petitioner. 1[st] petitioner will not be liable to pay any other amount towards maintenance to the 2[nd] petitioner or her children. 10. The 2[nd] petitioner shall give the custody of the minor children to the 1[st] petitioner in compliance of the orders passed by the Family Court, Muvattupuzha in O.P.No.123 of 2016 and in I.A.No.1786 of 2019. 11. Both parties have agreed to relinquish all their further claims against each other and agreed not to make any further claims against each other in future. The petitioners hereby have agreed to dispose Mat.Appeal No.493 of 2019, Mat.Appeal No.391 of 2021 and RPFC No.416 of 2015 pending before this Honourable Court in the light of the compromise arrived between the parties. 12. The permanent custody and guardianship of the minor children will be with the mother/2[nd] petitioner and visitorial as well as the interim custody shall be maintained in the existing manner (as per the orders of the Family Court, Muvattupuzha). 13. It is respectfully submitted that there is no collusion between the petitioners in filing this petition for dissolution of the marriage. It is also submitted that the consent for divorce has not been obtained from the -:10:- Mat.Appeal No.493 of 2019 & con.cases petitioners either of them by fraud, force or by undue influence by or upon either of the parties. This petition filed by the petitioners jointly solely on account of their bonafide realization of the fact that is better to part with each other than to continue the relationship as husband and wife. They have not filed any other petition for the same relief.” 9. Heard the learned counsel for the appellant-wife and the learned counsel for the respondent-husband. 10. 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 13B(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 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 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; iii) the parties have genuinely settled their differences -:11:- Mat.Appeal No.493 of 2019 & con.cases including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony.' 11. Today, when these matters are taken up for consideration, we have interacted with the appellant-husband and the respondent-wife. 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. They have two children born in the wedlock. The appellant-husband and the respondent-wife are living separately from the year 2014 onwards. Since the parties have genuinely settled their disputes and since they are living separately from the year 2014 onwards, we find that the cooling period of six months provided under Section 13B(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 13B(2) of the Act, the parties can be granted a decree of divorce by mutual consent. In such circumstances, I.A.No.1 of 2022 in Mat.Appeal No.493 of 2015 is allowed by granting a decree of divorce by mutual consent under Section 13B of the Act, by dissolving the marriage solemnized between the appellant-wife -:12:- Mat.Appeal No.493 of 2019 & con.cases and respondent-husband in Mat.Appeal No.493 of 2019 on 17.04.2004, after waiving the statutory period of six months provided under Section 13B(2) of the Act. In the above circumstances, these matters are disposed of granting the decree of divorce as above in Mat.Appeal No.493 of 2019, in terms of the terms and conditions contained in paragraphs 8 to 13 of I.A.No.1 of 2022 in Mat.Appeal No.493 of 2019, which shall form part of this judgment/order. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/22/11 -:13:- Mat.Appeal No.493 of 2019 & con.cases ## **APPENDIX OF MAT.APPEAL NO.391 OF 2021** ## **PETITONER’S ANNEXURES :** |**ANNEXURE**|**1**|**A TRUE COPY OF THE DECREE IN OP 123/2016 ON**| |---|---|---| |||**THE FILES OF FAMILY COURT, MUVATTUPUZHA**| |||**DATED 11.08.2017**| |**ANNEXURE**|**2**|**A TRUE COPY OF THE APPLICATION IN IA**| |||**NO.1786/2019 DATED 18.12.2019.**|