Sukanya Haridasan K.H. v. Havin Sajee

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` THURSDAY, THE 27[TH] DAY OF OCTOBER 2022/5TH KARTHIKA, 1944 ``` ``` O.P.(FC) NO.574 OF 2022 ``` ``` AGAINST THE ORDER DATED 27.08.2022 IN UNNUMBERED OP OF ``` ``` 2022 OF FAMILY COURT, ERNAKULAM ``` ## **`PETITIONER/PETITIONER/PETITIONER:`** ``` SUKANYA HARIDASAN K.H., AGED 27 YEARS, D/O LATE K.S HARIDASAN, SUKANYA HOUSE, KUREEKKAD P.O, THIRUVAMKULAM, ERNAKULAM, PIN - 682305 ``` ``` BY ADVS.BASIL CHANDY VAVACHAN CHARUTHA BHAIJU GEORGIE SIMON CHANDHANA BHAIJU BASIL SAJAN BASIL SCARIA ``` ## **`RESPONDENT/RESPONDENT/RESPONDENT:`** ``` HAVIN SAJEE, AGED 29 YEARS, S/O SAJEE V.R. SAGARM AZAD, MOLUMPURAM ROAD, EROOR SOUTH P O, ERNAKULAM -682306 CURRENTLY RESIDING AT : 34G , STAG HILL COURT, GUILDFORD ,GU27JG, UK., ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(FC)No.574 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner filed an original petition before the Family Court, Ernakulam seeking a decree of dissolution of marriage under Section 13(1)(i)(ia) of the Hindu Marriage Act, 1955. The marriage between the petitioner and the respondent was solemnised on 03.02.2022 at Pottayil Temple, Eroor. The marriage was registered before the Local Registrar of Marriages (Common), Thripunithura. In the original petition, it is averred that after the registration of marriage, the petitioner returned to her house and the respondent returned to U.K. on the very next day. Thus, the marriage between the petitioner and the respondent is not consummated. At the time of marriage, the petitioner was aged 27 years and the respondent was aged 29 years. Though the respondent contacted the petitioner in the initial days, he never showed any intimacy towards her. He had not taken any initiative for taking the petitioner to UK or live with her. With those allegations that the petitioner filed original petition before the Family Court, Ernakulam, which was accompanied by I.A.No.5271 of 2022, an application seeking leave to present the petition for divorce within a period of one year from the 3 O.P.(FC)No.574 of 2022 date of marriage, considering the exceptional hardship of the petitioner. The Family Court, by the order dated 27.08.2022 dismissed that interlocutory application, even without issuing notice to the respondent. In the said order, the Family Court has arrived at a conclusion that no exceptional hardship or exceptional depravity is pointed out in that interlocutory application in order to grant leave to present the petition for divorce by waiving the period of one year from the date of the marriage stipulated under Section 14(1) of the Act. 2. On 10.10.2022, when this original petition came up for admission, this Court issued notice to the respondent by speed post returnable by today. The petitioner was permitted to take out notice to the respondent in his local address at Ernakulam. The learned counsel for the petitioner was directed to furnish e-mail ID of the respondent within two days and Registry was directed to issue notice to the respondent through e-mail as well. 3. Today, when this matter is taken up for consideration, Registry reported that notice was sent to the respondent through e-mail as directed in the order dated 10.10.2022 with the hearing date as 27.10.2022 (today), 4 O.P.(FC)No.574 of 2022 along with a copy of this original petition and a copy of the order dated 10.10.2022. The acknowledgment card of the notice to the respondent in his local address is also returned with signature. 4. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P1 order dated 27.08.2022 of the Family Court, Ernakulam, whereby the application made by the petitioner, invoking the provisions under Section 14(1) of the Hindu Marriage Act stands rejected for the reasons stated therein. 5. Heard the learned counsel for the petitioner. Despite service of notice, none appears for the respondent. 6. The learned counsel for the petitioner would place reliance on the decision of this Court in Mat.Appeal No.623 of 2020. 7. Section 14 of the Hindu Marriage Act reads thus; “14. No petition for divorce to be presented within one year of marriage — (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage: 5 O.P.(FC)No.574 of 2022 Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.” ## 8. In **Akshara A. v. Rohin S. Raveendran [2018** ## **(4) KHC 509** , this court held that for waiver of one year period various parameters to be considered by the Family 6 O.P.(FC)No.574 of 2022 Court for the purpose of conducting an enquiry in order to allow the waving of one year period. Paragraphs 4, 5 and 9 of the decision read thus; “4. A Division Bench of this court had occasion to deal with the issue in **Gijoosh Gopi v. Sruthi [2012 (4) KLT 269]** . On the facts, it was also a case where the marriage did not last even for a day and the marriage was not consummated. There also mediators were involved and an agreement was arrived with respect to inability to continue the marital relationship and a decision was arrived to seek dissolution through mutual consent. Relying on a decision of the High Court of Delhi **In re : Pooja Gupta** _**[**_ **(2005) DHC 571 : (2003) ILR 2 Delhi 616]** it was held that it is clear that there exists exceptional hardships. In **Pooja Gupta's** _case_ (supra) the Delhi High Court observed that, the relevant consideration while granting exemption from the expiry of one year period for filing a petition for divorce by mutual consent are: - (a) the maturity and the comprehensions of the spouses; - (b) absence of coercion / intimidation / undue influence; - (c) the duration of the marriage sought to be dissolved; - (d) absence of any possibility of reconciliation; - (e) lack of frivolity; 7 O.P.(FC)No.574 of 2022 - (f) lack of misrepresentation or concealment; - (g) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties. 5. We are of the considered opinion that the court below had failed to make a proper consideration by conducting an enquiry with respect to presence of the relevant factors mentioned as above. None of the criteria could have fetched a negative inference, if a proper consideration was made in the case at hand. The court below could have considered the factum of the deleterious effect on the continuance of the sterile marriage, on the prospects of re-marriage of the parties. As held by the High Court of Delhi, that itself can be considered as a case of exceptional hardship contemplated under the proviso to Section 14 (1) of the Act. 9. Considering clause (i) extracted from the decision in **Amardeep Singh v. Harveen Kaur [2017 (4) KHC 683]** it is to be found that, a waiver of the 6 months period specified in Section 13B(2) cannot be made in a case where the application for dissolution of the marriage was presented within expiry of one year from the date of separation of the parties. Therefore, in the case at hand the petition for dissolution of the marriage can be considered only on the expiry of 6 months period from the date of presentation of original petition. Since we have already found that the application made under the proviso to Section 14 (1) was liable to be allowed in 8 O.P.(FC)No.574 of 2022 this case, the date of presentation of the petition for dissolution of the marriage need to be considered as the original date of presentation of the said petition, which is noted in the impugned order as 31-08-2017.” 9. In **Vishnudas H. and another v. Nil [2020 (4) KHC 598]** , another Division Bench of this Court held that for entertaining an application under 14(1) before lapse of one year from the date of marriage, parameters under which the terms 'exceptional hardship' and 'exceptional depravity' to be appreciated by Court. Paragraphs 8 and 10 of the decision read thus; “8. A reading of Section 14(1) of The Act, will show that, though the substantial provision provides a restriction in entertaining an application for dissolution of a marriage before the lapse of one year from the date of marriage, the proviso permits the court to grant leave to present the petition before the lapse of one year from the date of marriage, if the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. The proviso to the section creates two instances where the court can grant leave to excuse time limit i.e., exceptional hardship to the petitioner or exceptional depravity to the respondent. 10. What is an exceptional hardship to the petitioner and what would be the exceptional depravity for the respondent, are matters which the court will have to identify, based on the factual situation that arise in each 9 O.P.(FC)No.574 of 2022 individual case. These two terms cannot be defined or explained in a straight-jacket formula, but will depend upon the circumstances of each case. Allegations that may be sufficient to grant a decree of divorce may not, in all cases, constitute the ‘exceptional hardship’ contemplated under the section. The factors that shall be weighed by the court while deciding a petition for grant of leave to present a petition for divorce are inter alia, reasonable probability of a reconciliation between the parties, interests of children in the marriage, as is indicated in Section 14(2) of the Act. With the above factors in mind, the terms exceptional hardship and exceptional depravity ought to be appreciated by the court by stepping into the shoes of the petitioner or the respondent, as the case may be. In our system of adversarial jurisprudence, when, parties who are discrepant in all aspects, are in accord that continuance of the relationship causes more hardship to them, in the absence of materials to the contrary, Court need not and cannot disbelieve their affirmations, especially at the initial stage of granting permission to present a petition for divorce. The power conferred under the latter part of the proviso to Section 14 of the Act is sufficient safeguard against misrepresentations or concealment in obtaining the above referred permissions.” 10. In view of the law laid down in the decisions referred to supra, the relevant parameters that have to be considered by the family court in an application filed 10 O.P.(FC)No.574 of 2022 the comprehensions of the spouses; absence of coercion/ intimation/undue influence; the duration of the marriage sought to be dissolved; absence of any possibility of reconciliation; lack of frivolity; lack of misrepresentation or concealment; and the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties. 11. Having considered the materials on record with specific reference to the provisions under Section 14(1) of the Act, we find that the procedure adopted by the Family Court in dismissing I.A.No.5271 of 2022, without issuing notice to the respondent is improper. In such circumstances, this original petition is allowed by setting aside Ext.P1 order dated 27.08.2022 of the Family Court, Ernakulam in I.A.No.5271 of 2022 in unnumbered O.P. and by directing the Family Court to reconsider the aforesaid interlocutory application with notice to the respondent and pass a reasoned order taking note of the law laid down in the decisions referred to supra. The entire exercise in this regard shall be completed, as expeditiously as possible, at any rate, 11 O.P.(FC)No.574 of 2022 within a period of one month from the date of service of notice on the respondent. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** AV/28/10 12 O.P.(FC)No.574 of 2022 ## **`APPENDIX OF OP (FC) 574/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` THE CERTIFIED COPY OF ORDER DATED 27/08/2022 IN IA NO.5271/2022 IN OP UNNUMBERED OF THE HONOURABLE FAMILY COURT, ERNAKULAM ``` ``` Exhibit P2 THE TRUE COPY OF ORIGINAL PETITION UNNUMBERED FILED BY THE PETITIONER BEFORE HONOURABLE FAMILY COURT, ERNAKULAM ``` ``` Exhibit P3 THE TRUE COPY OF IA NO.5271/2022 FILED UNDER SECTION 14(1) HINDU MARRIAGE ACT 1955 ```