Mat.Appeal Nos.63 & 86 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022/1ST AGRAHAYANA,** ## **1944** ## **MAT.APPEAL NO.63 OF 2021** **AGAINST THE JUDGMENT DATED 30.11.2020 IN OP(HMA)NO.222 OF 2017 OF THE FAMILY COURT, MAVELIKKARA** **APPELLANT/RESPONDENT:** **SHYLAJA, AGED 40 YEARS D/O. VILASINI , MADATHILAYATH HOUSE, PUTHENCHANTHA P.O, VALLIKUNNAM VILLAGE, ALAPPUZHA DISTRICT-690 501** **BY ADVS.L.RAM MOHAN SRI.M.AUBREY ABRAHAM ISAAC** ## **RESPONDENT/PETITIONER:** **AJAYAN, AGED 44 YEARS S/O. BALAKRISHNAN, NAGAROORKULANGARA KIZHAKKATHIL, KRAZHMA MURI, VALLIKKUNNAM, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, 695 501.** **BY ADVS.SRI.SUBAL J.PAUL SMT.SHEEBA THOMAS SRI.K.B.LOLA** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION** **ON 22.11.2022, ALONG WITH Mat.Appeal.86/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- Mat.Appeal Nos.63 & 86 of 2021 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022/1ST AGRAHAYANA, 1944** **MAT.APPEAL NO. 86 OF 2021** **AGAINST THE JUDGMENT DATED 30/11/2020 IN OP(OTHERS)NO. 1267 OF 2017 OF THE FAMILY COURT, MAVELIKKARA APPELLANT/PETITIONER:** **SHYLAJA, AGED 40 YEARS D/O. VILASINI, MADATHILAYATH HOUSE, PUTHENCHANTHA P. O., VALLIKUNNAM VILLAGE, ALAPPUZHA DISTRICT - 690 501.** **BY ADVS.L.RAM MOHAN SRI.M.AUBREY ABRAHAM ISAAC** ## **RESPONDENT/RESPONDENT:** **AJAYAN, AGED 44 YEARS, S/O. BALAKRISHNAN, NAGAROORKULANGARA, KIAZHAKKATHIL, KRAZHMA MURI, VALLIKUNNAM, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT - 695 501.** **BY ADVS.SRI.SUBAL J.PAUL SMT.SHEEBA THOMAS SRI.K.B.LOLA** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH Mat.Appeal.63/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- Mat.Appeal Nos.63 & 86 of 2021 ## **JUDGMENT** ## Anil K. Narendran, J. Since common issue is raised, these appeals are heard together and are being disposed of by this common judgment. 2. Mat.Appeal No.63 of 2021:- The appellant is the respondent in O.P.(HMA)No.222 of 2017 on the file of the Family Court, Mavelikkara, which is one filed by the respondent herein-husband seeking a decree of divorce on the grounds of desertion and cruelty. By the judgment and decree dated 30.11.2020, the Family Court allowed O.P.(HMA)No.222 of 2017 and granted a decree of divorce, whereby the marriage solemnised between the petitioner and the respondent on 30.12.2007 is dissolved under Section 13(1) (ia) of the Hindu Marriage Act. Challenging the said judgment and decree, 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 25.01.2021, when this matter came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. By the order dated -4- Mat.Appeal Nos.63 & 86 of 2021 07.05.2021 in I.A.No.1 of 2021, this Court stayed the impugned judgment for a period of three months. 3. Mat.Appeal No.86 of 2021:- The appellant filed O.P. (Others)No.1267 of 2017 before the Family Court, Mavelikkara against the respondent herein-husband, for return of gold ornaments. The said original petition ended in dismissal by the judgment and decree dated 30.11.2020, which is under challenge in this appeal filed under Section 19(1) of the Family Courts Act, 1984. 3.1. On 02.02.2021, when this appeal came up for admission, this Court issued consolidated notice to the respondent in the appeal and also in I.A.No.1 of 2021. By the order dated 07.05.2021, this Court admitted the matter on file and granted an interim order in I.A.No.1 of 2021, whereby conditional attachment of the petition schedule property was granted, and the respondent was directed to furnish security for an amount of Rs.6,93,000/-. 4. During the pendency of these matters, the parties were referred for mediation. -5- Mat.Appeal Nos.63 & 86 of 2021 5. On 02.08.2022, when these appeals came up for consideration before another Division Bench, the following order was passed; “In the light of the settlement arrived at between the parties, we direct the Sub Registrar, Bharanikkavu, to register the document executed by the respondent herein, Ajayan, in favour of his children, Athira Ajayan and Anaswara Ajayan, notwithstanding the attachment effected over the property by the orders of this Court. It is made clear that this is only for the purpose of registering the settlement deed, not for any other purpose. We direct the parties to appear before this Court on 23.8.2022.” 6. On 19.09.2022, when these appeals came up for consideration, the parties were personally present in Court. The learned counsel on both sides submitted that the matter has already been settled in mediation and the parties have entered into a memorandum of agreement dated 18.05.2022. In terms of that agreement, a settlement deed has already been executed. However, the registered document is yet to be obtained by the appellant-wife. Therefore, the matter was adjourned, dispensing with the personal appearance of the -6- Mat.Appeal Nos.63 & 86 of 2021 parties. 7. On 27.10.2022, when these appeals came up for further consideration, the learned counsel on both sides submitted that in terms of the memorandum of agreement, a settlement deed has been executed and registered. Both parties shall file an application for divorce on mutual consent, invoking the provisions under Section 13B of the Hindu Marriage Act, 1955, before the next posting date. 8. Today, when these appeals are taken up for consideration, in Mat.Appeal No.63 of 2021, both parties have filed I.A.No.1 of 2022, a joint application under Section 13B of the Hindu Marriage Act, seeking decree of divorce by mutual consent. The said application is supported by I.A.No.2 of 2022 seeking an order to waive the statutory period of six months provided under Section 13B(2) of the Act. In the said application it is stated that after the marriage solemnised on 20.12.2007, they started living separately from the year 2015 onwards. 9. Heard the learned counsel for the appellant-wife -7- Mat.Appeal Nos.63 & 86 of 2021 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 including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony.' 11. We have interacted with the appellant-wife and the respondent-husband. They have stated in categorical terms -8- Mat.Appeal Nos.63 & 86 of 2021 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-wife and the respondent-husband are living separately from the year 2015 onwards. Since the parties have genuinely settled their disputes in mediation and since they are living separately from the year 2015 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.2 of 2022 is allowed by waiving the statutory period of six months provided under Section 13B(2) of the Act and I.A.No.1 of 2022 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 and respondent-husband on 20.12.2007. The settlement deed -9- Mat.Appeal Nos.63 & 86 of 2021 executed in terms of the memorandum of agreement is handed over to the appellant-wife in open court. 12. In the above circumstances, these appeals are disposed of in terms of the terms and conditions contained in the memorandum of agreement dated 18.05.2022, which shall form part of this judgment. In view of the order in I.A.No.1 of 2022, the marriage between the appellant-wife and the respondent-husband, solemnized on 20.12.2007 is dissolved by mutual consent under Section 13B of the Act, with effect from the date of this judgment. 13. The order of attachment in O.P.(Others)No.1267 of 2017 is lifted. Registry to forward a copy of this judgment to the Family Court, Mavelikkara, which shall communicate the same to the Sub Registrar Office, Bharanikkavu. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/30/11