Teena @ Manju and K.O.George v. Sijo Kurian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 8TH DAY OF APRIL 2014/18TH CHAITHRA, 1936 Mat.Appeal.No. 233 of 2010 ( ) ------------------------------- (AGAINST THE ORDER/JUDGMENT IN OP 1145/2004 of FAMILY COURT,ERNAKULAM DATED 15-02-2010) APPELLANT(S)/APPELLANTS/PETITIONERS: --------------------------------------------------------------- 1. TEENA @ MANJU, D/O.K.O.GEORGE, AGED 30 YEARS, KOTHAMATTATHIL HOUSE THIRUVANIYOOR VILLAGE, THIRUVANIYOOR P.O. ERNAKULAM DISTRICT. 2. K.O.GEORGE, S/O.LATE OUSEPH, AGED 58 YEARS, KOTHAMATTATHIL HOUSE THIRUVANIYOOR VILLAGE, THIRUVANIYOOR PO ERNAKULAM DISTRICT. BY ADVS.SRI.A.V.THOMAS SRI.JOJO GEORGE SRI.NIDHI SAM JOHNS ## RESPONDENT/RESPONDENT: ------------------------------------------- SIJO KURIAN, S/O.KURIAKOSE, AGED 38 YEARS, OROKKOTTIL HOUSE, THIRUVANKULAM VILLAGE CHITHRAPUZHA, KOCHI- 682 309. BY ADV. SRI.H.SIVARAMAN BY ADV. SRI.MATHEW CHERIAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08-04-2014, ALONG WITH MA. 911/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & ANIL.K.NARENDRAN, J.J.** ----------------------------------------------------------------------- Mat. Appeal Nos.233 of 2010 & 911 of 2011, IA No.1196/14 in Mat.A.No.233/10 &IA No.759/14 in Mat.A.No.911/11 ------------------------------------------------------------------------ Dated this, the 8[th] day of April, 2014 ## Judgment ## **Antony Dominic, J** . The first appellant and the sole/first respondent in both the appeals are husband and wife. Mat. Appeal No.233/10 is filed by the wife and her father, challenging the judgment and decree passed by the Family Court, Ernakulam in OP No.1145/04, whereby, the Family Court has declared the marriage between the parties solemnized on 26.08.2004 at St.George's Jacobite Syrian Church of Karingachira, Thripunithura, as null and void, under Section 18 and 19(3) of the Divorce Act, 1869 (hereinafter referred to as the Act). Mat. Appeal No.911/11 is also filed by the wife and her father against her husband and his parents, challenging the judgment of the Family Court, Ernakulam in OP No.150/05, which was filed for return of money and gold ornaments and was partly decreed. During the pendency of the appeals, the husband and wife decided to dissolve their marriage by mutual consent as provided under Section 10A of the Divorce Act and accordingly Mat. Appeal Nos.233/10 & 911/11 **2** they have jointly filed IA No.1196/14 in Mat. Appeal No.233 of 2010 for the said purpose. 2. Today, when the matter was taken up for consideration, the husband and wife were present in Court and they reiterated their decision to part ways as provided under Section 10A of the Divorce Act. 3. We have heard the learned Senior Counsel appearing for the wife and the learned counsel appearing for the husband and his parents. 4. On a reading of the averments made in the affidavits of the parties, filed in support of IA No.1196/14, referred to above and the submissions made at the Bar, we are satisfied that IA No.1196/14, seeking divorce under Section 10A is not vitiated by any fraud, coercion or any other vitiating circumstances and that the same is filed bona fide by the parties. Accordingly, the marriage between the parties, solemnized on 26.08.2004, is liable to be dissolved as prayed for by the parties. Mat. Appeal Nos.233/10 & 911/11 **3** 5. The surviving question is whether the 6 months' period as provided under Section 10A(2) of the Act is liable to be dispensed with, as prayed for by the parties. 6. Insofar as this case is concerned, as we have already noticed, the Family Court, Ernakulam, in its Judgment in OP No.1145/04, has already passed a decree, dissolving the marriage, accepting the ground as provided under Section 10(1) (iii) of the Act. Therefore, if the prayer sought for in this appeal is allowed, that will only amount to conversion of the ground accepted by the Family Court into one of mutual consent under Section 10A of the Act. In such a case, during the pendency of the appeal, if a request is made for divorce on mutual consent, this Court is well within its powers to dispense with the requirement of waiting as provided under Section 10A(2) of the Act. 7. This question has been considered by a Division Bench of this Court in **Lakshmi Prasad v. Hareesh.G.Panicker** (2014(1) KLT 850) with reference to the provisions of Section 13B(2) of the Hindu Marriage Act, 1955 and it has been held **4** Mat. Appeal Nos.233/10 & 911/11 ## thus : 10.It is the settled position in law that the six months' period in the second motion is prescribed in the Act to give an opportunity to the parties to see whether the marriage can be saved. Insofar as this case is concerned, parties have already parted their ways and the compromise only modifies the ground of divorce from cruelty to mutual consent. In such a situation, it is unnecessary to defer passing of the decree on the petition filed under S.13B. This very question came up for consideration of this Court in **Visalakshi v. Shivaraman Nair** (1991(1) KLT 910, where, this Court held thus in paragraphs 4 and 5 : “4. The question naturally arising is whether this Court can pass a decree under S.13B of the Hindu Marriage Act without following the formalities prescribed in the provision. According to S.13B, on a petition begging so presented, alleging that the spouses have been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved, the court shall, on being satisfied, after hearing the parties and after making such enquiries which it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree of divorce declaring the marriage to be dissolved with effect from the date of the decree on the motion of both the parties made not earlier than six months after the date of the presentation of the petition and not later than 18 months after the said **5** Mat. Appeal Nos.233/10 & 911/11 date provided that the petition is not withdrawn in the meantime. 5. The provision has been enacted to water down the rigour of the requirements of the provisions of the Hindu Marriage Act and to enable spouses to part amicably where the marriage has broken down and the spouses cannot be reconciled. Break-down of marriage has not been accepted as a ground sufficient to pass a decree for divorce before the incorporation of S.13B. The purpose of the provision is obviously to save the spouses from the ruinous consequences of marriages which have broken down and cannot be saved. The legislative policy disclosed in the requirement that the court should wait for six months is to give an opportunity to the parties to see if the marriage can be saved. That is why the legislature prescribed postponement of the passing of the order on the petition filed under S.13B of the Act. In cases like the present one, where the parties are before the appellate court after having fought a battle in the Trial Court and where the Court is satisfied that the parties had sufficient time to think over their own future and have come to a definite conclusion that the marital relationship has to be terminated, in our opinion, the Court should take a liberal view of the procedural requirement and refrain from insisting on the waiting period f six months. The parties have been residing separately for the last over five years and the wife has already encashed the cheque given by the husband in terms of the compromise. This is yet another reason which would persuade the court not to subject the parties to a fresh waiting period of six months. We find that such a liberal **6** Mat. Appeal Nos.233/10 & 911/11 view has been taken by a Division Bench consisting of Justice D.S.Tewatia and Justice M.M.Punchi (as he then was) of the Punjab and Haryana High Court in **Krishna Kjhetarpal v. Satish Lal** (AIR 1987 P&H) 191). In the light of the above principle and in the peculiar facts and circumstances of the case, we are satisfied that this court is not only entitled to pass a decree, but has a duty to pass a decree without insisting on the waiting period of six months.” 10. Again, the issue came for consideration before another Division Bench of this court in **Sreelatha v. Deepthy kumar** (1998(1) KLT 195), where, in an identical circumstance, six months' time provided under S.13B was waived. The same matter was considered by another Division Bench of this court in **Manojakumari v. Bhasi** (1988(2) KLT 858), where, it was held thus in paragraph 5 : “5. On reading the petition and on hearing the counsel on both sides, we are satisfied that the marriage between the parties had irretrievably broken and it is practically and emotionally dead. In such circumstances, the life of the spouses shall not be allowed to put in perpetual agony and despair. When such circumstance is brought to the notice of this Court, it is for it to find out a final solution on principles of justice and equity. Now, the parties are before us after a prolonged litigation, mutually agreeing not to live in unison but to separate themselves permanently. If that be the welfare of the parties, this Court need not stand against it. The procedural requirement can be waived in view of the mutual consent recorded in writing. In view of the observation in **Visalakshi** 's case, supra, we are not insisting for the procedural requirements in this case. We, **7** Mat. Appeal Nos.233/10 & 911/11 therefore, propose to decide this petition seeking a decree for divorce on mutual consent by ourselves and not by remitting it to the Trial Court. We also dispense with the waiting period of six months as required for the culmination of the divorce process.” 11. Similar view has been taken by the Bombay High Court in **Rakesh Haruskhbhai Parekh v. The State of Maharashtra** (AIR 2011 (Bom) 34) and **Santosh Lalmani Tiwari v. Aaradhana Devi Santosh Tiwari** (AIR 2013 (Bom) 12) and the Gujarat High Court in **Uday Narendrabhai Bhatt v. Shivangi Narendrabhat Shastri** (AIR 2011 (Guj) 156).” A similar request was allowed by the Apex Court in its decision in **Priyanka Khanna v. Amit Khanna** (2012(1) KLT 249 (SC). Having regard to the above legal position, we dispense with the requirement of Section 10A(2) of the Act and dispose of Mat. Appeal No.233/10, setting aside the Judgment of the Family Court in OP No.1145/04. It is directed that the marriage between the appellant and the respondent, solemnized on 26.08.2004 at St.George's Jacobite Syrian Church of Karingachira, Thripunithura, will stand dissolved under Section 10A of the Act with effect from today. IA No.1196/14 will stand ordered as above. **8** Mat. Appeal Nos.233/10 & 911/11 8. Insofar as Mat. Appeal No.911/11 is concerned, both parties submit that the disputes between them have been settled and therefore, the appellants pray that the appeal may be dismissed as not pressed. Accepting the said request made by the appellants, Mat. Appeal No.911/11 is dismissed as not pressed. It is directed that the attachment ordered by the Family Court, Ernakulam in IA No.399/05 in OP No.150/05 dated 08.02.2005 will stand lifted as prayed for in IA No.759/14 filed in this appeal. **Antony Dominic, Judge** **Anil.K.Narendran, Judge** sta