Dismissed

T.Sheela v. P.K.Balasubrahmanyan

Kerala HC6 Jul 2012Mat.Appeal/370/2012

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a matrimonial appeal filed by the second petitioner challenging a divorce decree granted by the Family Court under Section 13B of the Hindu Marriage Act. The court held that the Family Court was justified in granting the divorce as the requirements of mutual consent and the absence of collusion were established.

What did the court decide?

The appeal is dismissed in limine as it is without any merits.

T.Sheela Vs P.K.Balasubrahmanyan — Matrimonial and Divorce | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN

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THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934

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Mat.Appeal.No. 370 of 2012 ()

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OP.903/2011 of FAMILY COURT, MALAPPURAM

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APPELLANT(S)/2ND PETITIONER IN OP :

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T.SHEELA

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AGED 42 YEARS, D/O.DAMODARAN NAIR, PATTATHODI HOUSE PANDIKKAD P.O., MALAPPURAM DISTRICT.

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BY ADVS.SRI.K.M.JAMALUDHEEN

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SMT.LATHA PRABHAKARAN

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RESPONDENT/1ST PETITIONER IN O.P.:

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P.K.BALASUBRAHMANYAN

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AGED 49 YEARS, S/O.KUNJUNNI PANICKER (LATE) MELE NADUTHODI HOUSE, PULIKKAL P.O. MALAPPURAM DISTRICT-673 637.

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2012, THE COURT ON 06-07-2012 DELIVERED THE FOLLOWING:

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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Mat. Appeal No.370 of 2012 ----------------------------------------------Dated 6^th July, 2012.

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J U D G M E N T

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Joseph Francis, J.

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The appellant herein was the 2^nd petitioner before the Family Court, Malappuram in O.P.No.903/11 and the respondent herein was the first petitioner therein. The above Original Petition was filed by the appellant and the respondent together under Section 13B of the Hindu Marriage Act (hereinafter referred to as 'the Act') and Section 7(1)(a) of the Family Courts Act.

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In the Original Petition, it is alleged that the marriage of the appellant and the respondent took place on 25.8.1991 as per the Hindu customs and ceremonies. After the marriage, they were living as husband and wife and a son, viz., Lalu was born in the wedlock. Due to many reasons, the matrimonial life of the appellant and the respondent has broken down and they were living separately from 10.8.2002 onwards, thus physically and mentally separated. Though several mediation talks were made by the relatives of the appellant and the respondent, nothing was fruitful. As there was no chance of

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Mat.Appeal No.370/12

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reunion, the appellant and the respondent decided to separate and for that purpose, they filed the above Original Petition, on 2.9.2011. Before the Family Court, both the petitioners appeared personally and filed affidavits and on accepting the affidavits as evidence, the Family Court allowed the Original Petition and the marriage between the petitioners in the Original Petition was dissolved with effect from 8.3.2012. Against that order, the second petitioner in the Original Petition filed this appeal.

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When this appeal came up for admission, the learned counsel for the appellant submitted that the order of the Family Court is illegal, improper and against the facts and circumstances of the case and also without giving an opportunity to the parties to express their view. The learned counsel for the appellant submitted that the Family Court committed grave error in not making inquiry as envisaged in Section 13B(2) of the Act, before passing the impugned order. The said Section specifically says that the court is empowered to pass an order under Section 13B only after hearing the

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Mat.Appeal No.370/12

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parties and after making such inquiry as it thinks fit.

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In order to attract the provisions of Section 13B of the Act, the spouses should have been living separately for a period of one year or more and they have not have been able to live together and have mutually agreed that the marriage should be dissolved. In the joint petition filed by the petitioners under Section 13B of the Act, all the above three ingredients are specifically stated. Section 13B of the Act enables divorce in case of broken down marriage, by mutual consent. In the Original Petition, it is stated that the matrimonial life of the petitioners has broken down.

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Section 23(1)(b)(bb) of the Act provides that while a divorce is sought on the ground of mutual consent, the court must be satisfied that such consent should not have been obtained by force, fraud or undue influence. Section 23(1)(c) of the Act provides that the court must be satisfied that a petition (not being a petition presented under Section 11) is not presented or prosecuted in collusion with the respondent. In this case, in paragraph 5 of the petition, it is stated by the

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Mat.Appeal No.370/12

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petitioners that there is no collusion between the parties in filing the petition or any compulsion from any side and the petition is filed by the petitioners under their free will and decision. In the separate affidavits filed by the petitioners, these facts are stated. The mere fact that both petitioners want the marriage to be dissolved need not necessarily import collusion. Section 21 of the Act provides that all proceedings under the Act shall be regulated, as far as may, by the Code of Civil Procedure. Order 19 Rule 1 of the Code of Civil Procedure provides that the court has power to order any point to be proved by affidavit. In the present case, both the petitioners were present before the Family Court and they filed separate affidavits asserting that the facts stated in the joint petition are true. Moreover, the divorce decree under Section 13B of the Act was passed only after the expiry of the waiting period of six months from the date of filing of the petition and the parties were personally present before the Family Court after six months of filing of the petition and they filed separate affidavits confirming the facts stated in the joint petition. In this appeal,

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Mat.Appeal No.370/12

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the appellant has no case that the divorce decree granted under Section 13B is vitiated by collusion, force or fraud or undue influence. Therefore, we are of the view that Family Court is fully justified in granting the decree of divorce under Section 13B of the Act.

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Accordingly, this appeal is dismissed in limine, as it is without any merits. There is no order as to costs.

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Sd/-

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K.T.SANKARAN, JUDGE.

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Sd/-

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M.L.JOSEPH FRANCIS, JUDGE.

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tgs

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(true copy)

T.Sheela v. P.K.Balasubrahmanyan

Case brief

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T.Sheela v. P.K.Balasubrahmanyan

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