Vidya v. Pradeep

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, ``` ``` 1944 ``` ``` MAT.APPEAL NO. 444 OF 2017 ``` ``` AGAINST THE JUDGMENT DATED 18.03.2017 IN OP(HMA)NO.156/2013 ``` ``` OF FAMILY COURT, MAVELIKKARA ``` ## **`APPELLANT/S:`** ``` VIDYA, AGED 23 YEARS, W/O. PRADEEP, ANJALI, PILAPPUZHA,ALAPPUZHA. ``` ``` BY ADV SRI.T.K.ANANDA KRISHNAN ``` ## **`RESPONDENT/S:`** ``` PRADEEP, AGED 31 YEARS S/O. MADHAVAN, AMBAZHAVELIL, KARTHIKAPPALLY, ALAPPUZHA. ``` ``` BY ADVS. SRI.T.P.SAJAN SRI.P.SANTHOSH KUMAR TR ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, ALONG WITH Mat.Appeal.445/2017, 446/2017 AND CONNECTED CASE, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, ``` ``` 1944 ``` ``` MAT.APPEAL NO.445 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENTOP 217/2013 OF FAMILY COURT, MAVELIKKARA ``` ``` APPELLANT/S: ``` ``` VIDYA, AGED 23 YEARS, W/O. PRADEEP, ANJALI, PILAPPUZHA,ALAPPUZHA. ``` ``` BY ADV SRI.T.K.ANANDA KRISHNAN ``` ``` RESPONDENT/S: ``` ``` PRADEEP, AGED 31 YEARS, S/O. MADHAVAN, AMBAZHAVELIL, KARTHIKAPPALLY, ALAPPUZHA. ``` ``` BY ADVS. SRI.T.P.SAJAN SRI.P.SANTHOSH KUMAR TR ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, ALONG WITH Mat.Appeal.444/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, ``` ``` 1944 ``` ``` MAT.APPEAL NO. 446 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENTOPGW 558/2015 OF FAMILY COURT, ``` ``` MAVELIKKARA ``` ## **`APPELLANT/S:`** ``` VIDYA, AGED 23 YEARS AGED 23 YEARS, W/O PRADEEP, ANJALI, PILAPPUZHA, ALAPPUZHA. ``` ``` BY ADV SRI.T.K. ANANDA KRISHNAN ``` ``` RESPONDENT/S: ``` ``` PRADEEP, AGED 31 YEARS, S/O MADHAVAN, AMBAZHAVELIL, (DEVALAYAM),KARTHIKAPALLY VILLAGE,KARTHIKAPALLY P.O.,ALAPPUZHA. ``` ``` BY ADVS. SRI.T.P.SAJAN SRI.P.SANTHOSH KUMAR TR ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, ALONG WITH Mat.Appeal.444/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 ``` ``` MAT.APPEAL NO. 1424 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENTOP 736/2014 OF FAMILY COURT, ``` ## **`MAVELIKKARA`** ## **`APPELLANT/S:`** ``` VIDYA, AGED 23 YEARS W/O.PRADEEP, ANJALI, PILAPPUZHA, ALAPPUZHA. ``` ``` BY ADV SRI.T.K.ANANDA KRISHNAN ``` ## **`RESPONDENT/S:`** - **`1 PRADEEP, AGED 31 YEARS, S/O.MADHAVAN, AMBAZHAVELIL, KARTHIKAPPALLY, ALAPPUZHA.`** - **`2 MADHAVAN, AGED 63 YEARS, S/O.KRISHNAN, AMBAZHAVELIL,KARTHIKAPPALLY, ALAPPUZHA.`** - **`3 SARASAMMA, AGED 56 YEARS, W/O.MADHAVAN, AMBAZHAVELIL,KARTHIKAPPALLY, ALAPPUZHA.`** ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, ALONG WITH Mat.Appeal.444/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** ## **Mat.Appeal No.444 of 2017** :- The appellant filed O.P. (HMA)No.156 of 2013 on the file of the Family Court, Mavelikkara, a petition under Section 13(1)(i)(ia) of the Hindu Marriage Act seeking a decree to dissolve the marriage solemnised with the respondent herein-husband on 17.12.2007. That original petition ended in dismissal by the judgment and decree dated 18.03.2017. Feeling aggrieved, the appellant has filed this appeal invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 1.1 On 28.04.2017, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent, returnable in ten days. 2. **Mat. Appeal No.1424 of 2017** :- The appellant filed O.P.No.736 of 2014 before the Family Court, Mavelikkara, seeking return of gold ornaments or its equivalent value. That original petition ended in dismissal by the judgment and decree dated 18.03.2017. Feeling aggrieved, the appellant has filed this appeal invoking the provisions under Section 19(1) of the 6 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 Family Courts Act, 1984. 2.1 On 05.01.2018 when this appeal came up for consideration, this Court issued urgent notice in the delay condonation application and the appeal was ordered to be listed along with connected appeals. 3. **Mat. Appeal No.445 of 2017** :- The appellant is the respondent in O.P.No.217 of 2013 on the file of the Family Court, Mavelikkara, which is one filed by the respondent herein seeking a decree of restitution of conjugal rights. That original petition was allowed by the judgment and decree dated 18.03.2017. Feeling aggrieved, the appellant has filed this appeal invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 3.1 On 28.04.2017, when this appeal came up for admission, this Court admitted the matter on file and issued urgent notice to the respondent, returnable in within ten days and the matter was ordered to be listed along with Mat.Appeal Nos.444 and 446 of 2017. 4. **Mat.Appeal No.446 of 2017** :- The appellant is the respondent in O.P.No.558 of 2015 before the Family Court, ## 7 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 Mavelikkara, which is one filed by the respondent herein, seeking permanent custody of minor child, by name, Devika. That original petition was partly allowed by the judgment and decree dated 18.03.2017. Feeling aggrieved, the appellant has filed this appeal invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 4.1. On 28.04.2017, when this appeal came up for admission, this Court admitted the matter on file and issued urgent notice to the respondent returnable in ten days. In I.A.No.1509 of 2017 (I.A.No.1 of 2017) interim order was granted as prayed for. 4.2. On 27.09.2022, when this appeal came up for consideration, in order to explore the possibility of settlement by way of mediation, 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. 5. Now the parties have settled the matter in mediation. Memorandum of settlement agreement dated 07.11.2022 entered not between the parties is placed on record along with the report of the Mediator, which is dated 07.11.2022. 8 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 6. In terms of that settlement, the parties have filed I.A.No.1 of 2022 in Mat.Appeal No.444 of 2017, an application filed under Section 13B of the Hindu Marriage Act, seeking a decree to dissolve their marriage on mutual consent. That Application is supported by I.A.No.2 of 2022 filed under Section 13B(2) of the Act, seeking an order to waive the statutory period. 7. In Mat. Appeal No.1424 of 2017, the appellant has filed I.A.No.1 of 2022 seeking an order to lift the attachment by the Family Court, Mavelikkara in I.A.No.1257 of 2014 in O.P(OS)No.736 of 2014, pertaining to the properties of the 2[nd] and 3[rd] respondent therein, and to communicate the same to the Village Officer, Karthikappally Village. 8. 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 ## 9 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 ## 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.' 9. 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.444 of 2017, 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-wife and the respondent-husband are living separately from 2012 onwards. Since the parties have genuinely settled their disputes in mediation and since they are living separately from 2012 10 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 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 decree of divorce by mutual consent. 10. In such circumstances, I.A.No.2 of 2022 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 is allowed by granting a decree of divorce by mutual consent under Section 13B of the Act, by dissolving the marriage solemnized between the appellant-wife and respondent-husband on 17.12.2007 at Sree Krishna Mangalakaryalaya Temple, Pune. Accordingly, the appeal is disposed of in terms of the terms and conditions contained in the memorandum of agreement dated 07.11.2022, which shall form part of this judgment. In terms of the settlement, I.A.No.1 of 2022 in Mat.Appeal No.1424 of 2017 is also allowed, thereby lifting the order of attachment by the Family Court, in I.A.No.1257 of 2014 in O.P(OS)No.736 of 2014 pertaining to the properties of the 2[nd] 11 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 and 3[rd] respondent in that application. The Family Court shall communicate this order to the Village Officer, Karthikappally and also the concerned Sub Registrar Office, immediately on receipt of a copy of this judgment. Sd/- ## **ANIL K.NARENDRAN JUDGE** Sd/- ## **P.G. AJITHKUMAR JUDGE** bkn/- 12 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 **==> picture [426 x 601] intentionally omitted <==** 13 Mat.Appeal Nos.444/2017, 445/2017, 446/2017, 1424/2017 **==> picture [426 x 601] intentionally omitted <==**