Sarath Gopal v. Anjali D.

## **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 23[RD] DAY OF DECEMBER 2022/2ND POUSHA, 1944 MAT.APPEAL NO. 379 OF 2021 AGAINST THE JUDGMENT DATED 2903/2021 IN O.P.NO.1850 OF 2016 OF THE FAMILY COURT, THIRUVANANTHAPURAM APPELLANT/PETITIONER:** **SARATH GOPAL, AGED 29 YEARS, S/O.SIVABALAN.G., RESIDING AT T.C. 26/1358, PANAYIL VEEDU, PANAVILA, GPO, SECRETARIATE WARD, THIRUVANANTHAPURAM-695 001.** **BY ADVS.AMRIN FATHIMA ARAVIND AJITH STEFIN THOMAS** ## **RESPONDENT/RESPONDENT:** **ANJALI.D., AGED 27 YEARS D/O.BENJAMIN, RESIDING T.C. 26/951, RAJAJI NAGAR, GPO, THIRUVANANTHAPURAM-695 001.** **BY ADV P.M.MOHAMMED SHIRAZ** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- Mat.Appeal No.379 of 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the petitioner in O.P.No.1850 of 2016 on the file of the Family Court, Thiruvananthapuram, which is one filed against the respondent herein-wife seeking a decree of dissolution of marriage under Section 27(1)(d)(e) of the Special Marriage Act. That original petition ended in dismissal by the judgment and decree dated 29.03.2021. 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. On 19.07.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. 3. During the pendency of this appeal, both parties were referred for mediation before the Ernakulam Mediation Centre in the premises of this Court by the order dated 18.10.2022. 4. The parties have settled the disputes in mediation, and they have entered into a mediation settlement -3- Mat.Appeal No.379 of 2021 agreement dated 16.12.2022, which is placed on record along with the report dated 16.12.2022 of the Mediator. 5. Since the parties have contracted the marriage under the provisions of the Special Marriage Act, a petition under Section 28 of the Special Marriage Act, seeking a decree of divorce by mutual consent is filed as I.A.No.2 of 2022, in terms of the settlement. The said application is supported by I.A.No.3 of 2022, seeking an order to waive the statutory period of six months. In the affidavit filed in support of the said application it is stated that after the marriage solemnised on 22.08.2015, they started living separately from December 2015 onwards. 6. 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: -4- Mat.Appeal No.379 of 2021 '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.' 7. In **Tomy Joseph v. Smitha Tomy [2018 (5)** **KHC 267]** a Division Bench of this Court noticied that the provisions contained in Section 10A of the Divorce Act, 1869, are, in substance, a verbatim reproduction of the provisions contained in Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954. The only substantial difference is that, instead of the period of one year mentioned in Section 13B(1) of the Hindu Marriage Act and Section 28(1) of the Special Marriage Act, a period of two years of separate residence is provided under Section 10A(1) of the Divorce Act. The beneficiaries under the -5- Mat.Appeal No.379 of 2021 abovementioned provisions of different statutes are persons who want divorce by mutual consent and who file joint petition for that relief. There can be no discrimination among them on the ground of religion. Divorce by mutual consent is a secular concept. When the Apex Court has declared the law that the ‘cooling off period’ of six months provided under Section 13B(2) of the Hindu Marriage Act is not mandatory but directory and such period can be allowed to be waived by the Court on satisfaction of certain conditions, denying that benefit to persons who are governed by the Divorce Act, 1869 would amount to unjust discrimination. Therefore, the Division Bench held that the dictum laid down by the Apex Court in **Amardeep Singh [2017 (8) SCC 746]** is applicable to a petition for divorce filed under Section 10A of the Divorce Act, 1869 and on satisfaction of the conditions laid down in that decision, the Family Court can waive the period of six months stipulated under Section 10A(2) of that Act. 8. The principle laid down in the decision of the Apex Court in **Amardeep Singh [2017 (8) SCC 746]** stipulating -6- Mat.Appeal No.379 of 2021 the conditions for waiving the statutory period of six months after the date of presentation of petition for divorce by mutual consent can be applied in the case of an application filed under Section 28 of the Special Marriage Act, 1954, seeking divorce by mutual consent. Therefore, the statutory period of six months in the case of an application filed under Section 28 of the Special Marriage Act can be waived on satisfaction of the conditions laid down in the said decision of the Apex Court. 9. Today when this matter is taken up for consideration, we have interacted with the petitioners in I.A.No.2 of 2022, a joint petition filed under Section 28 of the Special Marriage Act. 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. Since December 2015, the appellanthusband and the respondent-wife are living separately. 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 will only prolong their agony. Therefore, -7- Mat.Appeal No.379 of 2021 we are satisfied that this is a fit case in which without waiting for the statutory period of six months, the parties can be granted a decree of divorce by mutual consent. 10. In such circumstances, I.A.No.3 of 2022 is allowed by waiving the statutory period of six months and I.A.No.2 of 2022 is allowed by granting a decree of divorce by mutual consent under Section 28 of the Special Marriage Act, by dissolving the marriage solemnised between the appellanthusband and respondent-wife on 22.08.2015 at Sub Registrar Office, Killipalam. Accordingly, the appeal is disposed of in terms of the terms and conditions contained in the memorandum of settlement agreement dated 16.12.2022, which shall form part of this judgment. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** AV/26/12 CDuT¢ : 4~tr Sefl l`tfl 3j dfeto; 322 # ERNAKULAM MEDIATION CENTRE The Nodal Officer, High Court Mediation Centre. To The Registrar Uudicial) High Court of Kerala, Ernakulam. **==> picture [48 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> .=```:.``,'<br>**----- End of picture text -----**<br> Sir' Sub : Mediation of case referred by the Hon.ble High Court of Kerala - Re::ge;erra,qudqr.,n..u.„...M.`A..„3.±P.I.29tl„.£„........„..„ dated igTldQ1 L9.?,t., , of the Honorable High Court of Kerala I am to forward herewith Report of the Mediator in the matt:er along with the enclosures for information and necessary action. Yours Fait Nodal Officer, Ernakulam Mediation Cent:re /___. _ .I Encl:- 1, Report of the Mediator, Settlerrient.Agr 2. Copy of the referral order dat:ed ..1#.iorfz:±T:#of the High Court of Kerala.. 3. Copy of the Petition J`'tiS # BEFORE THE HONOURABLE HIGH COUFIT. OF KERALA AT ERNAKULAM Mat Appeal No. 379 of 202± Sarath Gopal Appellant Vs. AnJ'ali D ## Respondent RE.P_OAT..SUBMl-TTED BY THE MEDIATOR ADV. REZIYA P.A. Mediated. Matt:er sett:led. _ Te+ms and conditions are-attached herewith.. Dated this the 16th day of December, 2022. Mediator Ernakulam Mediation Centre 0 # lN THE HONOURABLE HIGH COURT OF KERALA AT •ERNAKULAM # Mat[ Appeal No[ 379 of 2021 Sarath Gopal Appellant AnJ.ali D' Respondent ## SETTLEMEr\IT AGFLEEMENT FiLED UNDER RLJLE 24 oF TiJE CIVIL PROCEDURE CODE [ADR] F`LJ+ES. 2008 Parties have settled the dispute in mediation on the following terms and conditions; - 1 Both parties have realised that the marriage between them is irretrievably broken down and it is impossible for them to live together. There is absolutely no chance for a reunion. Both the parties have mutua-lly agreed that their marriage sh-all be dissolved by filing an application for divorce by mutual consent. - 2 Accordingly, both the parties have mutually decided to file a petition for divorce on mutual consent as provided under Section 138 of the Hindu Marriage Act before this Hon'ble Court:I - 3 Both the parties have also agreed that the petition for divorce on mutual consent shall be signed today, along with this agreement and presented before this Hon'ble Court. fechG:f\.i Keralastate Meufru concii|ation cenire#;DW\? ` High Court of Kerala Kocbi -682 031 - 4 Appellant, Sarath Gopal has agreed to pay a sum of Rs.5,00,000/-[Rupees five lakhs.only] to the respondent Anjali D., towards the full and final settlement of all her claims,- past, present and future, including claim for maintenance against the Appellant Sarath Gopal. The appe[lant Sarath Gopal agrees to pay the amount of Rs.5',00,000/- by way of Demand Draft No, 373361 dated 15/12/2022 for a sum of Rs.5,00,000/- to the resp.ondent Anjali D, on the day of pasting the a.pplication for divorce on mutual consent for enquiry by this Hon'ble Court. - 5 The Respondent, Anjali D hereby agliees that the above sum of Rs, 5,00,000/- is inclusive of her claim for maintenance ordered in M,C. No. .271/2016 of Family Court,. Thiruvananthapuram and both the parties hereby agrees to withdraw from all cases filed between them including Crl.M.P. No. 120 of 2019, Crl,M.P. No. 481 of 2017 and Crl. M,P, No.69/2_020 in M.C. _No,_27_1/2016_.pending befrore the Hon'ble Family Court, Thiruvahanthapuram and M.C. No.29/2019 and Crl M P No. 418/2021 pending before the Hon'ble Judicial First class Magistrate Court - 111, Thiruvananthapuram before - • passing final orders in the application for divorce on mutual consent. - 6 Both the parties have mutually realised that all the disputes and differences between them shall stand fully and finally settled between them hereaft:er, - 7 The Respondent Anjali D further agrees that Appellant SaTath Gopal shall not be liable to make any payments to her in 5ZprK8ralaStateMedia``,ui.iz}iidL.oiiciliationCenlre High Court Of Kerala #aoF,.S KOchi-e8203i f,ndr`\.9 future with respect to any claim arising out of the marital tie including monthly maintenance ordered in M.C, No.271/2016 by the Hon'ble Family Court, Thriuvananthapuram. - 8 The appellant Sarath Gopal and the respondent Anjali D further agrees not to file any complaints or cases or suits aga`inst each other or against their relatives relating to any matters pertaining to marriage. The appellant Sarath G.opal and the respondent Anjali D will not engage in activities which may affect their peaceful life and their families hereaft`er. - 9 Respondent Anjali D herby agree to co-operate with the appellant Sarath Gopal for filing joint petition for divorce and for executing necessary affidavit, Vakalath and petition for the same. - 10Both the parties agreed that they .shall have no claims or complaints against each other and their relatives arising out of their marital relationship hereafter. - llThe appeal may be disposed of in terms of the settlement agreement. - Dated thi e 16th day of December,2022. - rath Gopal - Appellant Anjali D. Respondent ## Signed before us KeralastateMefr ;r,dSoi`ciiiationcentre High Court of Kera`a Kodi -682 031 ## Verification We, Sarath Gopal and Anjali D., parties in the above appeal do hereby verify the contents of Paras 1 to 11 to be true and correct to the best of our knowledge, information and belief. Signed and verified on this LITE Lljl+ "E of December, 2022 at the Ernakulam. Sarath Gopa] Anjali D. Appellant Respondent fr, keralaStateMediationandConciliationCentre High Court of Kerala Kocrii -682 031 0