In an appeal against a rejected nullity decree, the Court found the marriage dissolved by mutual consent after settlement in mediation, waiving the mandatory six-month cooling-off period under Section 13B(2) of the Hindu Marriage Act to end the parties' agony.
Decree of divorce by mutual consent granted and statutory cooling-off period waived.
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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 23RD DAY OF NOVEMBER 2022/2ND AGRAHAYANA, 1944
MAT.APPEAL NO. 108OF 2019
AGAINST THE ORDER DTD.12.10.2018 IN OP.NO.205 OF 2017 OF
FAMILY COURT, KOZHIKODE
APPELLANT/S:
ARCHANA.P.K.,
AGED 21 YEARS
DAUGHTER OF CHANDRAN PARAPPURATHU, SREEKOVIL,
EDAVALATHU PARAMBU, MALAPARAMBU P.O.,
KOZHIKODE- 673009.
BY ADV K.A.SALIL NARAYANAN
RESPONDENT/S:
DEEPESH O.,
AGED 29 YEARS
SON OF MOHANAN K.P., OTTAKKANDATHIL VEEDU,
K.P.NIVAS, MALAPARAMBU P.O., KOZHIKODE-
673009.
BY ADVS.
SRI.E.G.GORDEN
SRI.S.K.KRISHNAKUMAR
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The appellant filed O.P.No.205 of 2017 on the file of the Family Court, Kozhikode, against the respondent herein to declare that the marriage solemnized between them on 15.11.2013 is null and void. That original petition ended in dismissal by the judgment and decree dated 12.10.2018. Feeling aggrieved, the appellant filed this appeal invoking the provisions under Section 19(1) of the Family Courts Act, 1984.
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was directed to pay a cost of Rs.20,000/- to the appellant. On 09.11.2022 when this matter is taken up for consideration, both parties were referred for mediation before the Nodal Officer, Ernakulam Mediation Centre, in the premises of this Court.
5 . Heard the learned counsel for the appellant-wife and the learned counsel for the respondent-husband.
6. T he 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
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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.'
7. Today, when this matter is taken up for consideration,
we have interacted with the appellant-wife and the respondenthusband. 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 for the past many years. Since the parties have genuinely settled their disputes in mediation and since they are living separately for
the past many years, we find that the cooling period of six months
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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 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 15.11.2013 at Aryasamajam, Kozhikode.
8. In the above circumstances, the appeal is disposed of in terms of the terms and conditions contained in the memorandum of agreement dated 18.11.2022, which shall form part of this judgment. In view of the order in I.A.No.1 of 2022, the marriage between the appellant-wife and the respondent-husband solemnized on 15.11.2013 at Aryasamajam, Kozhikode is dissolved by mutual consent, under Section 13B of the Act.
Since the judgment and decree of the Family Court, Kozhikode in O.P.No.205 of 2017 is set aside, the Family Court
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shall communicate a copy of this judgment/order to the Sub
Registrar, Kozhikode, for lifting the order of attachment.
Sd/-
ANIL K. NARENDRAN
JUDGE
Sd/-
P.G. AJITHKUMAR
JUDGE
bkn/-
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MAT.APPEAL NO. 108 OF 2019
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MAT.APPEAL NO. 108 OF 2019
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MAT.APPEAL NO. 108 OF 2019
2 issues framed by the court
Whether the statutory cooling-off period of six months under Section 13B(2) of the Hindu Marriage Act can be waived to grant a decree of divorce by mutual consent.
Whether the Appeal filed against the Family Court order rejecting the nullity decree is maintainable when the parties have mutually settled for divorce by mutual consent.
Colour shows how this judgement treated each authority
Amardeep Singh v. Harveen KaurExplained¶29
[2017 (8) SCC 746] · Who else cites this
3 provisions across 2 enactments
Archana.P.K.
Deepesh O.
Anil K. Narendran
P.G. Ajithkumar
As recorded by the court registry
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