Soumya and Anil v NIL X

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942** **OP (FC).No.87 OF 2021** **AGAINST THE ORDER IN I.A3/2021 IN OP 789/2020 DATED 18-01-2021 OF FAMILY COURT, OTTAPPALAM** ## **PETITIONERS/PETITIONERS:** **1 SOUMYA AGED 31 YEARS D/O. SUKUMARAN, VADAKKEDATH VEEDU, KUMARAMPUTHOOR POST, VATTAMBALAM, MANNARKKAD TALUK, PALAKKAD DISTRICT-678583 (MANNARKKAD POLICE STATION LIMIT)** **2 ANIL AGED 39 YEARS S/O. KUMARAN, MELMURI VEEDU, PARUTHIPPULLY EAST POST, PERINGOTTUKURUSSI, PARUTHIPPULLY AMSOM, PALAKKAD678573 (KOTTAYI POLICE STATIONLIMIT).** **BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA SRI.H.PRAVEEN (KOTTARAKARA) SRI.T.S.NEJIMUDDIN SMT.T.V.NEEMA** ## **RESPONDENT/S:** **NIL X** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.87 OF 2021** **2** ## **JUDGMENT** **Dated this the 5th day of February 2021** ## **C.S.DIAS,J.** The original petition is filed to quash the order dated 18.1.2021 in I.A No.3/2021 (Ext.P1) in O.P. No.789/2020 of the Family Court, Ottappalam. 2. The facts, in a nut-shell, in the original petition are as follows:- The petitioners are husband and wife. They have filed O.P.No.789/2020 to dissolve their marriage solemnised on 17.4.2011, by a decree of divorce, on mutual consent, as provided under Section 13B of the Hindu Marriage Act,1955. The petitioners filed Ext.P1 application in O.P. No.789/2020 to waive the statutory waiting period of six months. The Family Court by Ext.P2 order, dismissed Ext.P1 application on the grounds that the 2[nd] petitioner had not filed an affidavit in support of the application and that the 1[st] petitioner had not specifically stated that all the matrimonial disputes between the parties were **OP (FC).No.87 OF 2021** **3** settled. 3. Heard Smt.Neema T.V, the learned counsel appearing for the petitioners. 4. It is no longer res-integra, in view of the categoric declaration of law by the Hon'ble Supreme Court in **Amardeep Singh v. Harveen Kaur** [2017 (4) KLT 367 (SC)], that courts dealing with matters under Section 13B of the Hindu Marriage Act, 1955 have the inherent power to waive the statutory waiting period of six months contemplated under Section 13B (2), if it is satisfied that a case is made out and if there were/are pending proceedings between the parties before the Court. Paragraphs 18 and 19 of **Amardeep Singh (** supra) read thus: “18. Applying the above to the present situation, we of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B (2), it can do so after considering the following. (i) the statutory period of six months specified in Section 13B(2) in addition to the statutory period of **OP (FC).No.87 OF 2021** **4** 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. 19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. 5. From the averments in O.P No.789/2020, it is discernible that the marriage between the petitioners was solemnised on 17.4.2011; that they started living separately since 27.4.2013; that there were proceedings between the parties before the Judicial First Class Magistrate's Court, Mannarkkad as CC 659/2014, before the Family Court, Ottappallam as MC **OP (FC).No.87 OF 2021** **5** Nos.99/2014 and 728/2018 and before the Family Court, Palakkad as O.P.No.1070/2013. The petitioners arrived at a harmonious settlement in all the above cases and consequently filed O.P. 789/2020, to dissolve their marriage on mutual consent. Thereafter, on 11.1.2021, they filed Ext.P1 to waive the statutory waiting period of six months to move the second motion as laid down in **Amardeep Singh** (supra). However, the Family Court by the impugned Ext.P2 order, declined to waive the statutory waiting period on the grounds aforementioned 6. It is undisputed that the matrimonial turmoil started way back in the year 2014, by filing CC No.659/2014, i.e, now more than 6 years back. The petitioners have in unison averred in O.P 789/2020 and in this original petition that they have settled all the disputes arising out of their marital relationship. 7. On a comprehensive appreciation of the averments in O.P.789/2020 and Exts.P1 and P2 in juxta **OP (FC).No.87 OF 2021** **6** position with the ratio decidendi in **Amardeep Singh** (supra), we are convinced that the petitioners have fulfilled the para meters in **Amardeep Singh** (supra). 8. The preamble of the Family Courts Act, 1984, states that it is a legislation enacted, inter alia, to secure speedy settlement of disputes. 9. Going by the spirit and objective of the enactment and the uncontroverted facts in O.P. No.789/2020, it is nobody's case that there are pending disputes between the parties. In the said situation, the Family Court ought to have taken the averments in the affidavit on its face value and allowed Ext.P1, instead of banking on technicalities, which has only prolonged the trauma and agony of the petitioners, to continue to languish on the corridors of the Court. On being satisfied that the petitioners have fulfilled the guidelines in **Amardeep Singh** **OP (FC).No.87 OF 2021** **7** **(** supra), we are inclined to allow Ext.P1. 10. In light of our above findings, in exercise of the supervisory jurisdiction of this Court as enshrined under Article 227 of the Constitution of India, we set aside Ext.P2 order and allow I.A No.312/2021 in O.P.No.789/2020, by waiving the statutory waiting period of six months to move the second motion in O.P. No.789/2020. The Family Court shall forthwith permit the petitioners to file their affidavits in-lieu of their chief examination and interact with the parties, if felt necessary, and pass a decree of divorce, in accordance with law, as expeditiously as possible, at any rate within two weeks from the date of receipt of a copy of this judgment. The original petition is ordered accordingly. ## Sd/- **A.MUHAMED MUSTAQUE JUDGE** **Sd/- C.S.DIDAS, JUDGE** **ma/5.2.2021** **/True copy/** **OP (FC).No.87 OF 2021** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AFFIDAVIT AND PETITION FILED IN SUPPORT OF IA 3/2021 IN OP 789/2020 DATED 11/01/2021.** **EXHIBIT P2 TRUE COPY OF THE ORDER IN IA 3/2021 IN OP 789/2020 OF THE FAMILY COURT, OTTAPALAM DATED 18/01/2021.**