Sajan @ Scaria v. Jini Varghese

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 MAT.APPEAL NO. 817 OF 2013 AGAINST THE JUDGMENT AND DECREE DATED 14.06.2013 IN O.P.NO.1166 OF 2012 OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR** ## **APPELLANT/PETITIONER:** **SAJAN @ SCARIA** **AGED 42 YEARS, S/O. ANTONY, PUZHAKARAYIL HOUSE, MUTTOM KARA, MUTTAM VILLAGE, THODPUZHA TALUK, IDUKKI DISTRICT - 685 587.** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENT/RESPONDENT:** **JINI VARGHESE** **AGED 41 YEARS, D/O.DEVASIA VARGHESE, PARIYOTTU HOUSE, KOOTHARAPPALLY KARA, SANTHIPURAM P.O., KARUKACHAL VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT - 686 545.** **BY ADVS.** **SMT.DAISY A.PHILIPOSE SRI.JAI GEORGE** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 11.03.2022, ALONG WITH Mat.Appeal.Nos.91/2011 AND 92/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal Nos.817 of 2013 and 91 & 92 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 MAT.APPEAL NO. 91 OF 2011** **AGAINST THE JUDGMENT DATED 11.11.2020 IN O.P.NO.809 OF 2010 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR APPELLANT/PETITIONER:** **SAJAN@ SCARIA AGED 38 YEARS, S/O.ANTONY, R/AT PUZHAKARAYIL HOUSE, MUTTOM PO, MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** **BY ADV SRI.MILLU DANDAPANI** ## **RESPONDENT/RESPONDENT:** **JINI @ MARIYAM D/O.DEVASIA VARGHESE, R/AT PERIYOTTU HOUSE,, KOTHRAPILLIKARA,SHANTHIPURAM PO, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK,KOTTAYAM DISTRICT, PIN-686 545.** **BY ADVS. SMT.DAISY A.PHILIPOSE SRI.JAI GEORGE** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 11.03.2022, ALONG WITH Mat.Appeal.817/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Mat.Appeal Nos.817 of 2013 and 91 & 92 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 MAT.APPEAL NO. 92 OF 2011** **AGAINST THE ORDER DATED 11.11.2010 IN O.P.NO.807 OF 2010 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR** ## **APPELLANTS/RESPONDENTS:** - **1 SAJAN @ SCARIA, AGED 38 YEARS, S/O. ANTONY, RESIDING AT PUZHAKARAYIL HOUSE, MUTTOM P.O., MUTTOM KARA, MUTTOM VILLAGE,, THODUPUZHA TALUK, IDUKKI DISTRICT.** - **2 ANTONY, AGED 65 YEARS RESIDING AT PUZHAKARAYIL HOUSE, MUTTOM P.O., MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** - **3 CHINNAMMA, AGED 62 YEARS, W/O. ANTONY RESIDING AT PUZHAKARAYIL HOUSE, MUTTOM P.O., MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** **BY ADVS. SRI.MILLU DANDAPANI SRI.PREMCHAND R.NAIR** 4 Mat.Appeal Nos.817 of 2013 and 91 & 92 of 2011 ## **RESPONDENT/PETITIONER:** ## **JINI @ MARIYAM** **D/O. DEVASIA VARGHESE, RESIDING AT PERIYOTTU, HOUSE, KOOTHRAPILLI KARA, SHANTHIPURAM P.O., KARUKACHAL VILLAGE, CHANGANACHERY TALUK, KOTTAYAM DISTRICT, PIN-686 545.** ## **BY ADV SMT.DAISY A.PHILIPOSE** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 11.03.2022, ALONG WITH Mat.Appeal.817/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 Mat.Appeal Nos.817 of 2013 and 91 & 92 of 2011 ## **JUDGMENT** ## Ajithkumar, J. Mat.Appeal No.817 of 2013 was filed by the petitionerhusband in O.P.No.1166 of 2012 on the file of the Family Court, Kottayam at Ettumanoor. That was a petition filed under Section 10 of the Divorce Act, 1869 seeking dissolution of marriage between appellant and the respondent, which was solemnized on 09.01.2003. They have a child then aged 7 years. The petition was filed alleging incompatibility and other reasons, including cruelty. The original petition was dismissed as per judgment dated 14.06.2013. That judgment of dismissal is challenged in this appeal. 2. Mat.Appeal No.91 of 2011 was filed by the petitioner-husband in O.P.No.809 of 2010 on the file of the Family Court, Kottayam at Ettumanoor. That was a petition filed under Section 12(1) of the Guardian and Wards Act, 1890 seeking a relief of getting custody of the minor child. That original petition was allowed in part only and aggrieved thereof, he filed this Mat.Appeal. 6 Mat.Appeal Nos.817 of 2013 and 91 & 92 of 2011 3. Mat.Appeal No.92 of 2011 was filed by the respondent-husband and others in O.P.No.807 of 2010 on the file of the Family Court, Kottayam at Ettumanoor. That petition was filed by the respondent herein seeking return of money and gold ornaments said to have been given to her at the time of marriage. That original petition was allowed permitting the wife to realise Rs.17,24,150/- and 80 sovereigns of gold ornaments. This appeal was filed challenging that judgment. 4. This Court as per order dated 02.09.2021 referred the matter for mediation, on a prima facie finding that there were elements of settlement. In the mediation, all disputes between the parties were settled and a memorandum of settlement was entered into on 07.09.2021 between the parties. The memorandum signed by all the parties and their respective counsel has been placed on record. 5. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 6. The appellant-husband and the respondent-wife 7 Mat.Appeal Nos.817 of 2013 and 91 & 92 of 2011 together filed I.A.No.1 of 2022 in Mat.Appeal No.817 of 2013 under Section 10-A of the Divorce Act. They, after referring to the terms of compromise as per the memorandum of settlement dated 07.09.2021, stated that they mutually agreed to dissolve their marriage. It has been stated that despite repeated intercession and attempts made at various levels, a reconciliation has eluded. They are convinced that a reconciliation and reunion is not possible on account of the total incompatibility between them. They are also convinced that the marriage is irretrievably broken down and the only way out is divorce. They further stated in the application that they go by the terms of settlement arrived at between the parties in the memorandum dated 07.09.2021. 7. Having heard both sides and anxiously considered the terms of the memorandum of settlement, we are convinced that the compromise entered into between the parties is lawful. It is stated in I.A.No.1 of 2022 that the settlement deed has already been executed in terms of the compromise entered into between the parties. Thus, the 8 Mat.Appeal Nos.817 of 2013 and 91 & 92 of 2011 executory terms in the settlement have already been accomplished. 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 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.' 9 Mat.Appeal Nos.817 of 2013 and 91 & 92 of 2011 9. The petition for divorce was filed in the year 2012. The Family Court disposed of that case on 14.06.2013. The original petitions with respect to the custody of the minor child and for return of money and gold ornaments were disposed of as early as on 11.11.2010. After that, the parties have come up in appeals and the appeals have been pending before this Court. Considering the fact that the litigation between the parties have been pending for such a long period and there is no likelihood of reunion between the parties and also that the parties have already made sufficient provision for the future maintenance of the respondent-wife and also the child, we are of the view that the waiting period of six months as stipulated in Section 10-A(2) of the Indian Divorce Act can be waived in this case applying the principle laid down by the Apex Court in **Amardeep Singh** . Therefore, I.A.No.1 of 2022 is allowed. ## 10. Accordingly, (i) Mat.Appeal No.817 of 2013 is disposed of in terms of the orders on I.A.No.1 of 2022 and the marriage between 10 Mat.Appeal Nos.817 of 2013 and 91 & 92 of 2011 the appellant and the respondent, which was solemnized on 09.01.2003, is dissolved under Section 10-A of the Divorce Act, 1869; and - (ii) Mat.Appeal Nos.91 and 92 of 2011 are disposed of in terms of the memorandum of settlement entered into between the parties on 07.09.2021. The memorandum of settlement dated 07.09.2021 will form part of this judgment. - **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr ® 0 # IN THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM Mat. Appeal Nos. 91 and 92 of 2flll & 817,ol2QIE Sajan @ Scaria Appellant Vs. jini varghese Respondent ELEMORANDUM OF SETTLEMENT ENTRED INTO BY|E]E RARTiEs UNDER RUE 24 OF THE civiL mocEDURE CQDEI ALTERNATlvE DlspuTEs REDREssAL] _RilLEs, 2Onfi The parties hereto agree that the dispute between them can be settled on the following terms: 1. The Appellant hereby agrees to transfer 7.22 cents of property comprised in Sy. No. 55/10 of Muttom Village of Thodupuzha Taluk in ldukki District with the building situated therein by a registered settlement deed in consideration of the full and final settlement of all the claims raised by the respondent, jini Varghese and for the future well being of the minor son, Delan. 2. Respondent will take steps to lift the order of attachment passed by the -Court, in respect of the above mentioned property, within one week from today for effecting registration in terms of the settlement. **==> picture [107 x 45] intentionally omitted <==** **----- Start of picture text -----**<br> :f7:#<br>**----- End of picture text -----**<br> i-_:--` 3 C4;m¢c7rvvic3 . 2 3. The Appellant wiH evict the tenant residing in the building in the above mentioned property, within a period of one month from today. 4. The Appellant will execute settlement deed jn favourofthe respondent jn respect of 7.22 Cents of land. situated in Sy.No.55/10 of Muttom Village of Thodupuzha Taluk jn ldukki District with building therein, within two weeks from the date of handing over the order lifting the attachment. The order shall be handed over by the respondent to the AppeHant, through their Advocate. ® 5. At the time of execution of the settlement deed, the Appellant shall hand over the original prior document, upto date Land tax receipts, Property and Building Tax Receipts, Possession Certificate, Non-encumbrance Certificate, Record of rights and all other relevant documents of the property to the respondent. **==> picture [16 x 14] intentionally omitted <==** **----- Start of picture text -----**<br> ®<br>**----- End of picture text -----**<br> 6. On completing the registration of the proeprty, the Respondent has no objection in granting Divorce to the Appellant. Simultaneous with the registrtion of the settlement deed, Parties hereto shall sign petition under Sec 10 A of the Indian Divorce Act, before this I.Ion.ble Court, immediately. 7. The expenses for executing the settlement deed shall be borne by the Respondent. **==> picture [71 x 15] intentionally omitted <==** **----- Start of picture text -----**<br> `)\.\\,i,~/,...<br>**----- End of picture text -----**<br> i:f= -+ a 8. The Respondent has no objection in allowing Crl.RP.No.1482/2013 filed by the Appellant on the file of this Hon'ble Court. 9. After completing the registration of the above named property,respondent consents to complete the divorce proceedings as per the Cannon law and will sign all the necessary documents for the same and will appear before the concerned authority for completing the process. 10. The Appellant will be entitled to visit his minor son, Delan, between 2.00 p.in and 5,00 p.in at Saint Mary's Church, Parel on a Sunday. The date will be fixed jn prior consultation with the respondent by communicating the date by Text Message to Phone Number 9847066822. 10, The respondent will not file any further claims regarding maintenance of their minor son, Delan. a 11. Appellant, Sajan and respondent, jini varghese agree that they will have no further claim against each other in respect of the matrimonial tie. **==> picture [103 x 44] intentionally omitted <==** **----- Start of picture text -----**<br> • qf ty<br>**----- End of picture text -----**<br> **==> picture [78 x 19] intentionally omitted <==** **----- Start of picture text -----**<br> i\1>.,`,,.<br>**----- End of picture text -----**<br> 2`th 3 Cb4i-4. lt js respectfully prayed that this Hon'ble Court, may be pleased to record the compromise and dispose off the Appeals in terms of this settlement agreement without cost to either side. ## Dated this the 7th day of September, 2021. **==> picture [6 x 14] intentionally omitted <==** **----- Start of picture text -----**<br> /<br>**----- End of picture text -----**<br> Counsel for the Petitioner Counsel for the Respondent ## VERIFICAT.ON anddwe:,,at.:e[hpa?trtLeFa:i:vce.nntaaTn:a,i:op:Far:Payp::`elm[:`ylost::: true to the best of our knowledge, information and belief. Dated this the 7th day of September, 2021. a > Sajan @ Sc ]ini Varghesei,|i, Appellant in Mat. Appeal 91 Respondent in Mat. Appeal & 817/2013 amd lst appellant 91 and 92/2011 & 817/2013 in in Mat. Appeal 92/2011 t' Antony - 2nd Appellant in Mat. A 92/2011 rdrN r"I rty . Chinnamma -3rd Appellant in Mat. Appeal 92/2011 or