Dismissed

Anitha S v. Himoj M Prakash

Kerala HC24 Nov 2022Mat.Appeal/704/2021

Case brief

AI extract

What is this about?

The High Court of Kerala, while hearing a matrimonial appeal against a divorce decree, noted that the parties had settled their disputes via mediation. The Court applied for waiver of the six-month statutory cooling period under Section 13B(2) of the Hindu Marriage Act and granted a decree of divorce by mutual consent. The appeal was disposed of with the decree affirmed based on the settlement agr

What did the court decide?

I.A. No. 2 of 2022 was allowed by waiving the six-month statutory period; I.A. No. 1 of 2022 was allowed by granting a decree of divorce by mutual consent.

Anitha S Vs Himoj M Prakash — Matrimonial and Divorce | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

¶4

¶5

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

¶6

THURSDAY, THE 24TH DAY OF NOVEMBER 2022/3RD AGRAHAYANA,

¶7

¶8

MAT.APPEAL NO.704 OF 2021

¶9

AGAINST THE ORDER dated 05.10.2021 IN I.A.NO.3610 OF 2020
IN OP.NO.779 OF 2018 AND JUDGMENT DATED 05.10.2021 IN
O.P.NO.779 OF 2018 OF FAMILY COURT, ERNAKULAM

¶10

APPELLANT/S:

¶11

ANITHA S, AGED 38 YEARS
D/O.KUNJU PILLAI, MALIYIL HOUSE, KUZHIYARA
P.O. 682 312, KANAYANNUR VILLAGE, KANAYANNUR
TALUK, ERNAKULAM DISTRICT.

¶12

BY ADVS.
V.N.SANKARJEE
V.N.MADHUSUDANAN
R.UDAYA JYOTHI
M.M.VINOD
M.SUSEELA
KEERTHI B. CHANDRAN
VIJAYAN PILLAI P.K.
C.PURUSHOTHAMAN NAIR
NITHEESH.M

¶13

RESPONDENT/S:

¶14

HIMOJ M PRAKASH, AGED 40 YEARS
S/O.JAYAPRAKASH, USHUS BHAVAN, THALAYOLAPRAMBU
P.O., 686 605, VADAYAR VILLAGE, VAIKOM TALUK,
KOTTAYAM DISTRICT.

¶15

BY ADV T.M.RAMAN KARTHA

¶16

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶17

¶18

MAT.APPEAL NO.704 OF 2021

¶19

JUDGMENT

¶20

Anil K. Narendran, J.

¶21

The appellant filed O.P.No.779 of 2018 before the Family Court, Ernakulam, seeking a decree of divorce on the ground of cruelty. That original petition was disposed of in terms of the mediation agreement dated 04.02.2020, by the judgment and decree dated 05.10.2021. Challenging the same, the appellant filed this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984.

¶22

On 13.12.2021, when this appeal came up for admission, this Court issued notice to the respondent. By the order dated 25.08.2022, both parties were directed to appear before the Ernakulam Mediation Centre, in the premises of this Court, on 30.08.2022 at 10:30 a.m.

¶23

Now the parties have settled the disputes in mediation and they have entered into a memorandum of settlement agreement dated 08.11.2022.

¶24

In terms of that settlement, the parties have filed I.A.No.1 of 2022, an application under Section 13B of the Hindu Marriage Act, 1955, seeking a decree for dissolving the marriage solemnised between them on 10.11.2008 on mutual consent.

¶25

¶26

MAT.APPEAL NO.704 OF 2021

¶27

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.

¶28

The Apex Court in Amardeep Singh v. Harveen

¶29

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 is satisfied after considering the following:

¶30

'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;

¶31

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;

¶32

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

¶33

iv) the waiting period will only prolong their agony.'

¶34

6. T oday when this matter is taken up for consideration,

¶35

we have interacted with the petitioners in I.A.No.1 of 2022 in

¶36

¶37

MAT.APPEAL NO.704 OF 2021

¶38

Mat.Appeal No.704 of 2021, 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. Since 04.02.2018, the appellant-wife and the respondenthusband are living separately. Since the parties have genuinely settled their disputes in mediation and since they are living separately, 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.

¶39

7. 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 10.11.2008 at Pathiyamkulangara Devi Temple, Kalarcode, Alappuzha.

¶40

¶41

MAT.APPEAL NO.704 OF 2021

¶42

Accordingly, the appeal is disposed of in terms of the terms and conditions contained in the memorandum of settlement

¶43

agreement dated 08.11.2022, which shall form part of this

¶44

judgment.

¶45

Sd/-

¶46

ANIL K. NARENDRAN

JUDGE

Sd/-

P.G. AJITHKUMAR

JUDGE

bkn/-

MAT.APPEAL NO.704 OF 2021

¶54

¶55

MAT.APPEAL NO.704 OF 2021

¶56

¶57

MAT.APPEAL NO.704 OF 2021

Anitha S v. Himoj M Prakash

Case brief

What is this about?

What did the court decide?

Anitha S v. Himoj M Prakash

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Archana.P.K., Vs Deepesh O.

Sunitha Kumari V.R Vs Sugunan

Vidya Vs Pradeep

Sasindran Nair Vs the Travancore Devaswom Board

Shine Shaji Vs Sari A.S. @ Saria A.S.

Cochin Devaswom Board, Rep. by Its Secretary, Thrissur Vs Deputy Director, Local Fund Audit