Allowed

Neeethu Thomas v. Jibin K Jaison

Kerala HC1 Sept 2022OP (FC)/506/2022

Case brief

AI extract

What is this about?

High Court of Kerala allowed an original petition filed by a wife to quash a pending mutual consent divorce petition or direct its disposal. The Court exercised its writ jurisdiction under Article 226 of the Constitution to waive the statutory six-month cooling period under Section 13B(2) of the Divorce Act and granted the divorce by mutual consent, settling custody and maintenance arrangements.

What did the court decide?

Divorce by mutual consent granted under Section 10A of the Divorce Act, 1869; six-month cooling period waived; custody and maintenance terms confirmed.

Neeethu Thomas Vs Jibin K Jaison — Writ and Judicial Review | Kerala HC (2022)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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THURSDAY, THE 1^ST DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944 O.P.(FC) NO. 506 OF 2022

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O.P.(G&W) No.111 OF 2022 OF THE FAMILY COURT,KOZHIKODE PETITIONER:

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NEEETHU THOMAS

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AGED 28 YEARS, D/O LATE THOMAS, CHELLANTHARAYIL HOUSE, CHAMAL P.0, KOZHIKODE, PIN – 673573.

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BY ADVS.

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M.S.AMAL DHARSAN THUSHARA JAMES

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RESPONDENT:

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JIBIN K.JAISON, KALLOLIKKAL, KAKKADU P.O, PUTHUPADI, KOZHIKODE, PIN – 673586.

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BY ADV ADITHYA RAJEEV

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THIS O.P.(FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(FC) No.506 of 2022

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JUDGMENT

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Ajithkumar, J.

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The petitioner-wife, who is the respondent in O.P.No.111 of 2022 on the file of the Family Court, Kozhikode, has filed this Original Petition under Article 227 of the Constitution of India, seeking to quash the said O.P. or to direct the Family Court to dispose of the same within a time fixed by this Court.

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On 31.08.2022, this Court directed the parties to appear before this Court on 01.09.2022.

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When the matter is taken up today, parties have filed a petition under Section 10A of the Divorce Act, 1869 as I.A.No.1 of 2022 for divorce by mutual consent. The conditions agreed to between the parties regarding the dissolution of marriage on mutual consent and about the custody as well as maintenance of the child are the following:

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“7. However, all claims between the parties are settled out of court including claim for past and future maintenance and arrangement for the custody of the child, no further claim remains to be settled. The 1^st petitioner has returned from her custody, all the gold ornaments belonging to the 2^nd petitioner, and the 2^nd Petitioner has returned from his custody all gold ornaments belonging to the 1st Petitioner while filing

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O.P.(FC) No.506 of 2022

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this petition. Accordingly, the Petitioners are now filing this Joint Petition for dissolution of marriage by mutual consent on the following terms and conditions viz:

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(i) Both the Petitioners shall cooperate in full measure to take this Joint Petition for divorce by mutual consent forward to its logical and successful end so as to get their marriage dissolved.

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The Petitioners herein (ii) Visitation and Custody of the Child unanimously agrees that the 1^st Petitioner shall have the absolute custody of the child except on conditions mentioned hereunder:

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a) From age 2 to 5.- The 2^nd Petitioner hereby agrees that he shall have only the visitation right of the child on every Saturday of a month till the child attains 5 years of age. He shall visit the child at the residence of the 1^st Petitioner and spend time with the child from 9am till 6pm on that day and thereafter return back the child to the custody of the 1^st Petitioner.

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b) From age 6 to 18 - The Petitioners herein agrees that 2^nd Petitioner shall have the right to custody of the child on every Saturday of the month from 6^th year of the child till she attains 18 years of age. He shall take the custody of the child from the school on every Friday (after school hours) and thereafter return back the custody of the child to the 1^st Petitioner on Sunday morning at 10 am.

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O.P.(FC) No.506 of 2022

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c) The 2^nd Petitioner shall take the custody of the child on any further days with the consent of the 1st Petitioner.

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d) The 1^st Petitioner agrees that she shall continue to live in the present locality and in the event she shifts to different locality, she shall make available the child on the above agreed days for the custody of the child to the 2^nd Petitioner.

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e) The Petitioners unanimously agree that the Custody of the child during school vacations viz. Onam vacation, Christmas vacation and Summer vacation shall be equally shared between the Petitioners. Thereby the 2^nd Petitioner shall have the custody of the child for half of the holidays and the custody shall be returned to the 2^nd Petitioner after the same.

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f) The Petitioners unanimously agree to join hands in the future endeavors of the child and shall co-operate with each other on all major events of the child.

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(iii) Maintenance of child - The 1^st Petitioner agrees to waive the right to maintenance from the 2^nd Petitioner. The 2^nd Petitioner agrees to pay monthly maintenance towards the child in the following proportion on or before 10^th day of every English calendar month:

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a) From age 2 to 5- An amount of Rs.3,000/- every month

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b) From age 6 to 10 - An amount of Rs.5,000/- every month

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O.P.(FC) No.506 of 2022

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c) From age 11 to 15 - An amount of Rs.10,000/- every month

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d) From age 16 to 18 - An amount of Rs. 12,000/every month.

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The above amounts shall be timely remitted in the account of Smt. Neethu Thomas, A/c. No. 67213521210, State Bank of India, Thamarassery Branch (IFSN Code: SBIN0070225) of the 1^st Petitioner and same shall be used for the welfare of the child. The 2^nd Petitioner shall also bear half of the wedding expenses of the child at the time of marriage. The 2^nd Petitioner further agrees that in the event of any default on the payment of maintenance as agreed above, the custody and visitation right of the 2^nd Petitioner shall be ceased till the payment of arrears of maintenance.

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(iv) There are no other monetary claims between the Petitioners remaining be satisfied other than those mentioned above. The Petitioners, having settled all their claims, and with nothing remaining due from one another, shall not hereafter raise any fresh claim against each other.

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(v) In the light of the settlement made between the Petitioners, neither the First Petitioner nor the Second Petitioner shall claim any compensation/ alimony/ past or present maintenance.”

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Heard the learned counsel appearing for the petitioner and ascertaind the veracity of the consent of both

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O.P.(FC) No.506 of 2022

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sides. Both parties filed independent affidavits expressing their willingness to abide by the terms and conditions in the petition.

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The Apex Court in Amardeep Singh v. Harveen

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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:

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“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;

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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;

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

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O.P.(FC) No.506 of 2022

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We are convinced that the petitioner and respondent voluntarily had decided to part with. It is seen that their marriage is irretrievably broken down and all efforts for reconciliation failed. Taking all the facts and circumstances stated above, and law laid down by the Apex Court in Amardeep Singh (supra), we waive the statutory cooling period of six months and allow the I.A.No. 1 of 2022 and dispose of this Original Petition as follows:

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(i) Marriage between the petitioner and the respondent solemnised on 30.08.2018 is dissolved under Section 10A of the Divorce Act. 1869 with effect from today.

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(ii) Custody of the child shall be as per the terms and conditions extracted above in paragraph no.3.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

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O.P.(FC) No.506 of 2022

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APPENDIX OF OP (FC) 506/2022

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION IN M.C NO. 176/2021 FILED BEFORE THE FAMILY COURT, KOZHIKODE Exhibit P2 TRUE COPY OF THE ORIGINAL PETITION O.P. NO.111/2022 BEFORE THE FAMILY COURT, KOZHIKODE Exhibit P3 TRUE COPY OF THE APPLICATION FILED AS I.A. NO. 2/2022 IN O.P. NO.111/2022

Neeethu Thomas v. Jibin K Jaison

Case brief

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Neeethu Thomas v. Jibin K Jaison

Case brief

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