Sheema M. v. Abhilash Sivadasan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022/4TH KARTHIKA, 1944 MAT.APPEAL NO. 239 OF 2021 AGAINST THE ORDER DATED 24.11.2020 IN O.P.NO.341 OF 2018** **OF THE FAMILY COURT, KALPETTA** **APPELLANT/PETITIONER:** **SHEEMA M., AGED 38 YEARS, D/O. MADHAVAN NAIR, MADHAVA NIVAS, P.O. CHERUKATTOOR, PANAMARAM, WAYANADU DISTRICT 670 721.** **BY ADVS.P.VENUGOPAL SMT.T.J.MARIA GORETTI SMT.FERHA AZEEZ** ## **RESPONDENT/RESPONDENT:** **ABHILASH SIVADASAN, AGED 44 YEARS S/O. M K SIVADASAN NAIR, ANASWARA, KINATTUKARA, KURURVATTOOR P.O. KOZHIKODE DISTRICT 673 611.** **BY ADVS.T.P.PRADEEP R.K.PRASANTH MINIKUMARY M.V.** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION** **ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- Mat.Appeal No.239 of 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the petitioner in O.P.No.341 of 2018 on the file of the Family Court, Kalpetta, a petition filed against the respondent herein-husband seeking a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 to dissolve the marriage solemnised on 23.12.2007. The said original petition ended in dismissal by the judgment and decree dated 24.11.2020, which is under challenge in this appeal, invoking the provisions under Section 19 of the Family Courts Act, 1984. 2. On 24.03.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. 3. By the order dated 28.03.2022, the parties were directed to appear before the Ernakulam Mediation Centre in the premises of this Court, on 28.05.2022, in order to explore the possibility of settlement by mediation. 4. The parties have settled the disputes in mediation, and they have entered into a mediation settlement agreement -3- Mat.Appeal No.239 of 2021 dated 28.08.2022, which is placed on record along with the report dated 19.09.2022 of the Mediator. 5. On 17.10.2022, when this appeal came up for consideration, the learned counsel on both sides submitted that the parties have settled the matter in mediation. The respondent, who was abroad, executed settlement agreement in the presence of the competent officer in the Consulate General of India at Dubai. In order to move a petition under Section 13B of the Hindu Marriage Act, 1955, both parties were directed to appear in person before this Court, today. 6. Today, when this appeal is taken up for consideration, 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 23.12.2007, they started living separately from the year 2016 onwards. O.P.No.341 of 2018 seeking decree of divorce was filed before -4- Mat.Appeal No.239 of 2021 the Family Court, Kalpetta in the year 2018 and the said original petition ended in dismissal by the judgment and decree dated 24.11.2020. In I.A.No.1 of 2022, the parties have placed reliance on the decision of the Apex Court in **Amardeep Singh v. Harveen Kaur [2017 (4) KHC 683 : (2017) 8 SCC 746]** . 7. Heard the learned counsel for the appellant-wife and the learned counsel for the respondent-husband. 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 -5- Mat.Appeal No.239 of 2021 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. We have interacted with the appellant-wife and the respondent-husband. 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-wife and the respondent-husband are living separately from the year 2016 onwards. Since the parties have genuinely settled their disputes in mediation and since they are living separately from the year 2016 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 -6- Mat.Appeal No.239 of 2021 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 23.12.2007. 10. The terms and conditions in the memorandum of agreement dated 28.08.2022 entered into between the appellant and the respondent read thus; “1. The parties have agreed to dissolve their marital relationship through divorce by mutual consent. They agree that they shall file a joint petition for mutual divorce before this Hon’ble Court in the above Matrimonial Appeal. If the same is not permitted by this Hon’ble Court for any reason, they shall file a joint petition for divorce before the Family Court at Kalpetta, at the earliest possible. 2. The respondent, who is now abroad will come back to Kerala and necessary applications/petitions will be signed/executed within a period of one month from today. 3. Permanent custody and Guardianship of the minor children shall remain with the appellant. However, the respondent will have visitorial right of the minor children as and when he comes to Kerala on prior intimation. The venue for the visitorial right, unless otherwise agreed, -7- Mat.Appeal No.239 of 2021 shall be at the office of Adv.P.C.Chitra at Kalpetta. Parties are free to decide the overnight custody of the children in future. 4. The time for the visitorial rights shall not be less than 2 hours at a time. 5. Appellant shall permit the respondent to have video conference with the minor children, through WhatsApp/Google Meet or other like platforms, without affecting their studies and convenience. During the school vacation period, the appellant shall permit the respondent to take the children for outing during day time. In case of any particular special functions in the family of the respondent, the minor children shall be permitted to attend the same along with the respondent. 6. Respondent agrees to pay the monthly maintenance amount ordered by JFCM Court-I, Mananthavady in M.C.No.98/2018 to the children, without any default. Respondent will pay the said amount in the bank account of the appellant before 10th day of every month. 7. The appellant hereby relinquishes her right to claim past as well as future maintenance from the respondent. The appellant also agrees that any coercive steps taken in M.C.No.98/2018 on the files of JFCM Court-I, Mananthavady shall be closed/withdrawn, in view of this statement. 8. The parties agree that they will share the educational and medical expenses for children equally, in addition to the maintenance amount ordered in M.C.No.98 of 2018. -8- Mat.Appeal No.239 of 2021 The respondent has already availed a medical insurance for the children which he has agreed to renew from time to time. The same shall be utilized for the medical emergencies of children wherever it is allowable. The respondent agrees to send/furnish a copy of the medical insurance policy of the children to the appellant. 9. In view of the settlement, the respondent shall take steps to dispose of O.P.(G&W)No.187/2022 pending on the files of Family Court, Kalpetta, by incorporating the terms of settlement as aforesaid. 10. The parties agree that having settled all disputes, all other cases if any pending, shall be withdrawn, unless otherwise provided hereinabove.” 11. In the above circumstances, this appeal is disposed of in terms of the terms and conditions contained in the memorandum of agreement dated 28.08.2022, 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 23.12.2007 is dissolved by mutual consent under Section 13B of the Act, with effect from the date of this judgment. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** AV/27/10 •`...'..... ## ERNAKULAM MEDIATION CENTRE The Nodal Officer, High Court Mediation Centre, To ## The Registrar Uudicial) High Court of Kerala, Ernakulam. i sir, - Sub : Mediation of case referred by the Hon'ble High Court of Kerala - reg. / Ref : :::::r:.I..:£##fa.. M4 Q9qNowl of the Honorable High Court of Kerala I am to forward herewith Report of the Mediator in the matter along with the en s for information and necessary action. Yours Faithfully, **==> picture [69 x 21] intentionally omitted <==** **----- Start of picture text -----**<br> t,lf,!ii~<br>**----- End of picture text -----**<br> ## Nodal Officer, Ernakulam Mediation Centre /J Report of the Mediator, Settlement A eement Copy of the referral order dated .Of.de ed4. of the High Court of Kerala.. Copy of the Petition ## BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM Matrimonial APDea[ No.239 of 2021 **==> picture [318 x 58] intentionally omitted <==** **----- Start of picture text -----**<br> Sheema M. Appellant<br>Vs.<br>Abhilash Sivadasan Respondent<br>**----- End of picture text -----**<br> `H **==> picture [112 x 52] intentionally omitted <==** **----- Start of picture text -----**<br> MEDIATloN REPORT<br>Matter settled.<br>**----- End of picture text -----**<br> Dated this the 19th day of September 2022. owJAIcONI:::::::# High Court of Kerala **==> picture [9 x 15] intentionally omitted <==** **----- Start of picture text -----**<br> J<br>**----- End of picture text -----**<br> ## BEFORE THE HONOURABLE HIGH COURT OF KERALA ERNAKULAM ## Ivlatrimonial ADDeal No.239 Of 2021 Sheema M. Appellant Vs. Abhilash Sivadasan Respondent ## MEDiATlor\I SETTLEMENT AGREEMENT BETWEEN THE pARTiEs The parties have settled all their disputes between them amicably as follows; 1. The parties have agreed to dissolve their marital relationship through divorce by mutual consent. They agree that they shall file a joint petition for mutual divorce before this Hon'ble Court in the above Matrimonial Appeal. If the same is not permitted by this Hon'ble Court for any reason, they shall file a joint petition for divorce before the Family Court at Kalpetta, at the earliest possible. 2. The respondent, who is now abroad will come back to Kerala and necessary applications/petitions will be signed/executed within a period of one month from today. 3. Permanent custody and Guardianship of the minor children shall remain with the appellant. However, the respondent will have visitorial right of the minor children as and when he comes to Kerala + `` ABIt\LO&H` SWADftfgiv 8faceMjfty Sle'`9 and Concjljali.on Ce ..., J],.J'-High Courlof Kerala`fochj - 682 081 on prior intimation. The venue for the visitorial right, unless otherwise agreed, shall be at the office of Adv. P.C.Chitra at Kalpatta. Parties are free to decide the overnight custody of the children in future. 4. The time for the visitorial rights shall not be less than 2 hours at a time. 5. Appellant shall permit the respondent to have video conference with the minor children, through WhatsApp/Google Meet or other like platforms, without affecting their studies and convenience. During the school vacation period, the appellant shall permit the respondent to take the children for outing during day time. In case of any particular special functions in the family of the respondent, the minor children shall be permitted to attend the same along with the respondent. 6. Respondent agrees to pay the monthly maintenance amount ordered by JFCM Court-I, Manathavady in M.C No.98/2018 to the children, without any default. Respondent will pay the said amount in the bank account of the appellant before 10th day of every month. 7. The appellant hereby relinquishes her right to claim past as well as future maintenance from the respondent. The appellant also agrees that any coercive steps taken in M.C No.98/2018 on the files of J FCM Court-I, Manathavady shall be closed/withdrawn, in view of this **==> picture [57 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> settlement.<br>**----- End of picture text -----**<br> **==> picture [386 x 84] intentionally omitted <==** **----- Start of picture text -----**<br> ASHILAJ!1.cS`L/4P4zzJAW<br>?*t> _21 i-i<br>•iiT=i ;:.<br>l{erala Slate<br>andCon¢illa(ionCenlr6<br>Hi'gh Court of Kerala EEZIJ=<br>Kochj - 682 03 I<br>**----- End of picture text -----**<br> **==> picture [170 x 19] intentionally omitted <==** **----- Start of picture text -----**<br> i--=-..--=`-,.`,--i-<br>**----- End of picture text -----**<br> •1 8. The parties agree that they will share the educational and medical expenses for children equally, in addition to the maintenance amount ordered in M.C No.98/2018. The respondent has already availed a medical insurance for the children which he has agreed to renew from time to time. The same shall be utilised for the medical emergencies of children wherever it is allowable. The respondent agrees to send/furnish a copy of the medical insurance policy of the children to the appellant. 9. In view of the settlement, the respondent shall take steps to dispose of O.P.(G&W) No.187/2022 pending on the files of Family Court, Kalpetta, by incorporating the terms of settlement as aforesaid. - 10.The parties agree that having settled all disputes, all other cases if any pending, shall be withdrawn, unless otherwise provided hereinabove. Dated this the28th day of August, 2022. **==> picture [131 x 71] intentionally omitted <==** **----- Start of picture text -----**<br> :bhi,a:;:,:`:`jSiv ad -iasan<br>Counsel for Respondent<br>**----- End of picture text -----**<br> **==> picture [4 x 7] intentionally omitted <==** **----- Start of picture text -----**<br> i<br>**----- End of picture text -----**<br> Slgned my presence. He / She has a::v|.£eifee&daisysuh:::t|S.#+;1.:.:: on ..2`e.I !..9,:.2er No responsibility ls accepted by this off&fo€}he,c€::e,nssA:f2tohlsfrument. c¥u,¥e!®¥T#D#, 2 8 A.:J$ 2r22 **==> picture [104 x 23] intentionally omitted <==** **----- Start of picture text -----**<br> shseha¢+<br>**----- End of picture text -----**<br> **==> picture [227 x 32] intentionally omitted <==** **----- Start of picture text -----**<br> Counsel for<br>Ap/%Pve,all<br>**----- End of picture text -----**<br> ## ABHILASH SIVADASAN Name.----------. passpo" No y3-3|3.f3-3-2.. 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