Sreejith v. Sudhina (Mat.Appeal Nos.221/2018; 222/2018; 224/2018; 225/2018), High Court of Kerala

# **`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 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 MAT.APPEAL NO. 221 OF 2018 ``` ``` AGAINST THE JUDGMENT DATED 08.01.2018 IN O.P.NO.414 OF 2017 OF ``` ``` FAMILY COURT, OTTAPPALAM ``` ``` APPELLANT/S: ``` ``` SREEJITH, AGED 32 YEARS, S/O.RAVEENDRAN, KOLLARA HOUSE, PATTURAIKKAL P.O., PATTURAICKAL DESOM, THRISSUR TALUK, THRISSUR VILLAGE, THRISSUR - 680 022. ``` ``` BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.S.K.ADHITHYAN SRI.P.MOHANDAS ERNAKULAM SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN ``` ## **`RESPONDENT/S:`** ``` DR. SUDHINA, AGED 27 YEARS, D/O.BHARATHAN, MALAPPURATH HOUSE, NAGALASSERY P.O., KOOTTANADU, NAGALASSERY VILLAGE, OTTAPPALAM, PALAKKAD – 679 533. ``` ``` BY ADVS. SRI.ARUN MATHEW VADAKKAN SRI.SANTHEEP ANKARATH ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2022, ALONG WITH Mat.Appeal.222/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` ``` 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 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 MAT.APPEAL NO. 222 OF 2018 ``` ``` AGAINST THE JUDGMENT DATED 08.01.2018 IN O.P.NO.415 OF 2017 OF ``` ``` FAMILY COURT, OTTAPPALAM ``` ## **`APPELLANT/S:`** ``` SREEJITH, AGED 32 YEARS S/O.RAVEENDRAN, KOLLARA HOUSE, PATTURAIKKAL P.O., PATTURAICKAL DESOM, THRISSUR TALUK, THRISSUR VILLAGE, THRISSUR-680 022. ``` ``` BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.S.K.ADHITHYAN SRI.P.MOHANDAS ERNAKULAM SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN ``` ## **`RESPONDENT/S:`** ``` 1 SUDHEENA M.B, AGED 27 YEARS D/O.BHARATHAN, MALAPPURATH HOUSE, NAGALASSERY P.O., KOOTTANAD, NAGALASSERY VILLAGE, OTTAPPALAM, PALAKKAD-679 533. 2 BHARATHAN, AGED 59 YEARS, MALAPPURATH HOUSE, NAGALASSERY P.O., KOOTTANAD, NAGALASSERY VILLAGE, OTTAPPALAM, PALAKKAD-679 533. ``` 3 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` ``` 3 SUJATHA, AGED 50 YEARS, W/O.BHARATHN, MALAPPURATH HOUSE, NAGALASSERY P.O., KOOTTANAD, NAGALASSERY VILLAGE, OTTAPPALAM, PALAKKAD-679 533. ``` ``` BY ADV SRI.SANTHEEP ANKARATH ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2022, ALONG WITH Mat.Appeal.221/2018, 224/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` ## **`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 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 MAT.APPEAL NO.224 OF 2018 ``` ``` AGAINST THE JUDGMENT DATED 08.01.2018 IN O.P.NO.413 OF 2017 OF FAMILY COURT, OTTAPPALAM ``` ## **`APPELLANT/S:`** - **`1 SREEJITH, AGED 33 YEARS, S/O. RAVEENDRAN, KOLLARA HOUSE, PATTURAIKKAL P.O., PATTURAICKAL DESOM, THRISSUR TALUK, THRISSUR VILLAGE, THRISSUR680022.`** - **`2 RAVEENDRAN, S/O. AYYAPPAKUTTY, KOLLARA HOUSE, PATTURAIKKAL P.O., PATTURAICKAL DESOM, THRISSUR TALUK, THRISSUR VILLAGE, THRISSUR-680022.`** - **`3 MEERA RAVEENDRAN, W/O. RAVEENDRAN, KOLLARA HOUSE, PATTURAIKKAL P.O., PATTURAICKAL DESOM, THRISSUR TALUK, THRISSUR VILLAGE, THRISSUR-680022.`** - **`4 JIJITH, S/O. RAVEENDRAN, KOLLARA HOUSE, PATTURAIKKAL P.O., PATTURAICKAL DESOM, THRISSUR TALUK, THRISSUR VILLAGE, THRISSUR-680022.`** ``` BY ADVS. ``` ``` DR.K.P.SATHEESAN (SR.) SRI.S.K.ADHITHYAN SRI.P.MOHANDAS ERNAKULAM SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN ``` 5 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` ## **`RESPONDENT/S:`** ``` DR.SUDHINA, AGED 27 YEARS, D/O. BHARATHAN, MALAPPURATH HOUSE, NAGALASSERY P.O., KOOTTANADU, NAGALASSERY VILLAGE, OTTAPPALAM, PALAKKAD-679533. ``` ``` BY ADVS. SRI.SANTHEEP ANKARATH SRI.ARUN MATHEW VADAKKAN ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2022, ALONG WITH Mat.Appeal.222/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 6 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` ``` 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 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 MAT.APPEAL NO. 225 OF 2018 ``` ``` AGAINST THE JUDGMENT DATED 08.01.2018 IN O.P.NO.412 OF 2017 OF ``` ``` FAMILY COURT, OTTAPPALAM ``` ## **`APPELLANT/S:`** ``` SREEJITH, AGED 32 YEARS, S/O. RAVEENDRAN, KOLLARA HOUSE, PATTURAIKKAL.P.O.THRISSUR- 680 022 ``` ``` BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.S.K.ADHITHYAN SRI.P.MOHANDAS ERNAKULAM SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN ``` ## **`RESPONDENT/S:`** ``` SUDHEENA M.B., AGED 27 YEARS, D/O.BHARATHAN, MALAPPURATH HOUSE, NAGALASSERY.P.O., KOOTTANADU, OTTAPPALAM, PALAKKAD- 679 533 ``` ``` BY ADV SRI.SANTHEEP ANKARATH ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2022, ALONG WITH Mat.Appeal.222/2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 7 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` ## **JUDGMENT** Anil K. Narendran, J. Since common issues are involved, these appeals are heard together and are being disposed of by this common judgment. 2. Mat.Appeal No.221 of 2018:- The appellant-husband is the respondent in O.P.No.414 of 2017 on the file of the Family Court, Ottappalam, a petition filed by the respondent herein-wife for restitution of conjugal right. The Family Court allowed the said original petition and granted a decree of restitution of conjugal right by the judgment and decree dated 08.01.2018. Challenging the judgment and decree dated 08.01.2018 of the Family Court, Ottappalam in O.P.No.414 of 2017, the appellant has approached this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 2.1. On 20.02.2018, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent. In I.A.No.702 of 2018, this Court stayed the operation of the judgment and decree dated 08.01.2018 in O.P.No.414 of 2017, for a period of three months and the appeal was ordered to be listed along 8 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` with the connected cases. On 25.07.2018, the interim order granted on 20.02.2018 was extended until further orders. 3. Mat.Appeal No.222 of 2018:- The appellant-husband is the petitioner in O.P.No.415 of 2017 on the file of the Family Court, Kannur, seeking return of gold ornaments and amount from the respondents. By the judgment and decree dated 08.01.2018, the Family Court dismissed the said original petition. 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. 3.1. On 20.02.2018, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents. 4. Mat.Appeal No.224 of 2018:- The appellants are the respondents in O.P.No.413 of 2017 before the Family Court, a petition filed by the respondent herein-wife seeking return of gold ornaments and amount. By the judgment and decree dated 08.01.2018, the Family Court allowed the said original petition by directing the 2[nd] and 3[rd] appellants to return 141 sovereigns of gold ornaments or its value, 9 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` i.e., Rs.30,90,720/- to the respondent herein and the 2[nd] appellant was directed to return Rs.10,00,000/- to the respondent herein, together with 6% interest from the date of the judgment till realisation. Challenging the said judgment and decree, the appellants are before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 4.1 On 20.02.2018, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents. In I.A.No.706 of 2018, this Court stayed the operation of the judgment and decree dated 08.01.2018 in O.P.No.413 of 2017 for a period of three months on condition of the appellants furnishing security for the decree debt, to the satisfaction of the court below, within six weeks. On 25.07.2018, the interim order granted on 20.02.2018 was extended until further orders. 5. Mat.Appeal No.225 of 2018:- The appellant-husband is the petitioner in O.P.No.412 of 2017 on the file of the Family Court, Kannur, seeking a decree of divorce against the respondent-wife on the ground of cruelty. By the judgment and decree dated 08.01.2018, the Family Court dismissed the said original petition. Challenging the 10 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` 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. 5.1. On 20.02.2018, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents. 6. On 30.09.2022, when these Mat.Appeals came up for consideration, the learned counsel on both sides submitted that mediation talks are going on and therefore, the appeals may be referred for mediation. By the order dated 30.09.2022, both parties were directed to appear before the Nodal Officer, Ernakulam Mediation Centre, in the premises of this Court on 12.10.2022 at 10.15 a.m. 7. On 10.11.2022, when these appeals came up for further consideration, the learned counsel on both sides submitted that in terms of the settlement agreement, the appellants have to make payment by 09.12.2022. Hence the appeals were ordered to be listed today (09.12.2022) for appearance of the parties. 8. The parties have settled the disputes in mediation and a memorandum of settlement dated 09.11.2022 entered into between 11 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` the parties is placed on record along with the report of the Mediator. In terms of the settlement, the appellant-husband and the respondent-wife in Mat.Appeal No.221 of 2018 have filed I.A.No.1 of 2022, under Section 13B of the Hindu Marriage Act, 1955 seeking a decree of divorce by mutual consent, for dissolving their marriage solemnised on 02.01.2014, at Sree Krishna Temple, Guruvayur. They have also filed I.A.No.2 of 2022 under Section 13B(2) of the said Act, seeking an order to waive the cooling period of six months in considering the application for divorce on mutual consent. 9. Heard the learned counsel for the appellants-husband and his parents and also the learned counsel for the respondent-wife. 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 12 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` 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. Today when these matters are taken up for consideration, we have interacted with the petitioners in I.A.No.1 of 2022 in Mat.Appeal No.221 of 2018, a joint petition filed under Section 13B of the 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. The appellant and the respondent are living separately from the year 2017 onwards. Since the parties have genuinely settled their disputes in mediation and since they are living separately from the year 2017 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 13 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` decree of divorce by mutual consent. In such circumstances, I.A.No.2 of 2022 in Mat.Appeal No.221 of 2018 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 in Mat.Appeal No.221 of 2018 is allowed by granting a decree of divorce by mutual consent under Section 13B of the Act, by dissolving the marriage solemnised between the appellant- husband and respondent-wife in Mat.Appeal No.221 of 2018 on 02.01.2014 at Sree Krishna Temple, Guruvayur. In the above circumstances, these appeals are disposed of in terms of the terms and conditions contained in the memorandum of agreement dated 09.11.2022, which shall form part of this judgment. In view of the order in I.A.No.1 of 2022, the marriage solemnised between the appellant-husband and the respondent-wife in Mat.Appeal No.221 of 2018 on 02.01.2014 at Sree Krishna Temple, Guruvayur, is dissolved by mutual consent under Section 13B of the Hindu Marriage Act. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** bkn/- 14 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` **==> picture [468 x 661] intentionally omitted <==** 15 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` **==> picture [468 x 661] intentionally omitted <==** 16 ``` Mat.Appeal Nos.222, 221, 224 and 225 of 2018 ``` **==> picture [468 x 660] intentionally omitted <==**