Sudheesh v. Reshmi

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944 ``` ## **`MAT.APPEAL NO.294 OF 2020`** ``` AGAINST THE ORDER DTD. 26.11.2019 IN OP.NO.885 OF 2017 OF FAMILY COURT, THRISSUR ``` ## **`APPELLANT/S:`** ``` SUDHEESH, AGED 27 YEARS S/O.SUBRAMANIAN, VATTAPARAMBIL HOUSE, KURUKKANPARA DESOM, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680523. ``` ``` BY ADVS. K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT SRI.M.A.AHAMMAD SAHEER SRI.P.B.MUHAMMED AJEESH ``` ## **`RESPONDENT/S:`** ``` RESHMI, AGED 25 YEARS D/O.RAJAN, THERATH HOUSE, KURUKKANPARA DESOM, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK, KURUKKANPARA P.O., THRISSUR DISTRICT, PIN-680523. ``` ``` BY ADV ATHIRA A.MENON ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Mat. App No.294 of 2020 ## **JUDGMENT** Anil K. Narendran, J. The appellant-husband is the petitioner in O.P.No.885 of 2017 on the file of the Family Court, Thrissur, filed against the respondent herein-wife seeking a decree of divorce under Section 13(1)(ia) on the ground of cruelty. The Family Court by the judgment and decree dated 26.11.2019 dismissed the said original petition. Feeling aggrieved by the judgment and decree dated 26.11.2019 of the Family Court, Thrissur in O.P.No.885 of 2017, the appellant-husband has approached this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 2. On 17.06.2020, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent. 3. On 12.10.2022, when this appeal came up for consideration, in order to explore the possibility of settlement, both parties were directed to appear before the Nodal Officer, Ernakulam Mediation Centre, in the premises of this Court on 19.10.2022 at 3 Mat. App No.294 of 2020 10.15 a.m. 4. The parties have settled the disputes in mediation and a memorandum of settlement dated 22.11.2022 executed between the parties is placed on record along with the report dated 22.11.2022 of the Mediator, Ernakulam Mediation Centre. In terms of the settlement, the appellant-husband and the respondent-wife have jointly filed I.A.No.1 of 2023 under Section 13B of the Hindu Marriage Act, 1955 seeking a decree of divorce by mutual consent, for dissolving their marriage solemnised on 29.06.2013. They have also filed I.A.No.2 of 2023 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. 5. On 25.01.2023 when this matter was taken up for consideration, both parties were directed to be personally present in Court today (30.01.2023) at 10:15 a.m. 6. Heard the learned counsel for the appellant-husband and also the learned counsel for the respondent-wife. 7. The Apex Court in **Amardeep Singh v. Harveen Kaur** **[2017 (8) SCC 746]** considered whether it is mandatory in all 4 Mat. App No.294 of 2020 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.” 8. Today when these matters are taken up for consideration, we have interacted with the petitioners in I.A.No.1 of 2023, 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 5 Mat. App No.294 of 2020 divorce by mutual consent. The appellant and the respondent are living separately from 27.05.2015 onwards. Since the parties have genuinely settled their disputes in mediation and since they are living separately from 27.05.2015 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 2023 is allowed by waiving the statutory period of six months provided under Section 13B(2) of the Act and I.A.No.1 of 2023 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 on 29.06.2013. In the above circumstances, this appeal is disposed of in terms of the terms and conditions contained in the memorandum of settlement dated 22.11.2022, which shall form part of this judgment. In view of the order in I.A.No.1 of 2023, the marriage 6 Mat. App No.294 of 2020 solemnised between the appellant-husband and the respondentwife on 29.06.2013, is dissolved by mutual consent under Section 13B of the Hindu Marriage Act. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** bkn/- 7 Mat. App No.294 of 2020 **==> picture [445 x 628] intentionally omitted <==** 8 **==> picture [445 x 628] intentionally omitted <==** Mat. App No.294 of 2020