Partly allowed

Bivin John v. Minnu Joseph

Kerala HC7 Feb 2023Mat.Appeal/391/2022

Case brief

AI extract

What is this about?

The Family Court in Kottayam in a joint petition filed by both husband and wife prayed for waiver of the six-month cooling-off period under Section 10A of the Divorce Act, 1869, and passing of a decree of divorce by mutual consent on the grounds of irretrievable breakdown of marriage and living separately for two years. The High Court applied the unconditional view taken by the Supreme Court in Am

What did the court decide?

哑 grant of a decree of divorce by mutual consent under Section 10A of the Divorce Act after waiving the six-month waiting period; recognition of the memorandum of settlement agreement dated 19.01.2023

Bivin John Vs Minnu Joseph — Matrimonial and Divorce | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

¶4

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 7TH DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944

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MAT.APPEAL NO.391 OF 2022

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IN O.P.NO.1474 OF 2018 ON THE FILE OF THE FAMILY COURT,

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KOTTAYAM

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APPELLANT:

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BIVIN JOHN,
AGED 42 YEARS, S/O SURESH JOHN,
PULIKKAPARAMBIL HOUSE, CHENGALAM P.O.,
THIRUVARPU VILLAGE, KOTTAYAM TALUK,
KOTTAYAM, PIN - 686585

¶12

BY ADVS.
TOM JOSE (PADINJAREKARA)
SUNNY JOSEPH
K.T.SEBASTIAN

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RESPONDENT:

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MINNU JOSEPH,
AGED 36 YEARS, D/O JOSEPH ALEXANDER,
MAPPILASSERIL HOUSE, KAILASANADU,
UDUMBANCHOLA TALUK, IDUKKI DIST., PIN - 685554

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BY ADVS.
T.P.PRADEEP
MINIKUMARY M.V.

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
07.02.2023, ALONG WITH MAT.APPEAL.370/2022, 221/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶17

¶18

Mat. Appeal No.370 of 2022 and conne. cases

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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

¶22

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 7TH DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944

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MAT.APPEAL NO.370 OF 2022

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IN O.P.(DIV)NO.1022 OF 2018 ON THE FILE OF THE FAMILY COURT,

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KOTTAYAM

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APPELLANT:

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BIVIN JOHN,

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AGED 42 YEARS, S/O SURESH JOHN,
PULIKKAPARAMBIL HOUSE, CHENGALAM P.O., THIRUVARPU
VILLAGE, KOTTAYAM TALUK, KOTTAYAM, PIN - 686 585.

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BY ADVS.

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TOM JOSE (PADINJAREKARA)
SUNNY JOSEPH
K.T.SEBASTIAN

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RESPONDENT:

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MINNU JOSEPH,

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AGED 36 YEARS, D/O JOSEPH ALEXANDER,
MAPPILASSERIL HOUSE, KAILASANADU, UDUMBANCHOLA
TALUK,IDUKKI DIST., PIN - 685554

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BY ADVS.
T.P.PRADEEP
R.K.PRASANTH

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
07.02.2023, ALONG WITH MAT.APPEAL.391/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶38

¶39

Mat. Appeal No.370 of 2022 and conne. cases

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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

¶43

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 7TH DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944

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MAT.APPEAL NO.709OF 2022

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AGAINST THE JUDGMENT DATED 28.02.2022 IN O.P.NO.44 OF 2019
ON THE FILE OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR

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APPELLANT:

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MINNU JOSEPH @ MARY,
AGED 36 YEARS,
W/O.BIVIN JOHN, D/O.JOSEPH MAPPILASSERIL, FLAT
NO.9-C, KALLUPALAM HILL RESIDENCY, CHALUKKUNNU,
KOTTAYAM P.O., PIN - 686 001.

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BY ADVS.
T.P.PRADEEP
MINIKUMARY M.V.
P.K.SATHEES KUMAR
R.K.PRASANTH
JIJO JOSEPH

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RESPONDENT:

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BIVIN JOHN,
AGED 41 YEARS,
S/O.DR.SURESH JOHN, PULIKKAPARAMBIL HOUSE,
CHENGALAM SOUTH POST, CHENGALAMKARA, THIRUVARPU
VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT - 686
022.

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BY ADVS.
TOM JOSE (PADINJAREKARA)
K.T.SEBASTIAN

¶54

THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
07.02.2023, ALONG WITH MAT.APPEAL.391/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶55

¶56

Mat. Appeal No.370 of 2022 and conne. cases

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

¶59

THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN

¶60

¶61

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 7TH DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944
R.P.(FC)NO.221 OF 2022

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IN M.C.NO.219 OF 2018 ON THE FILE OF THE FAMILY COURT,

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KOTTAYAM

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REVISION PETITIONER:

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BIVIN JOHN,
AGED 42 YEARS, S/O SURESH JOHN,
PULIKKAPARAMBIL HOUSE, CHENGALAM P.O., THIRUVARPU
VILLAGE, KOTTAYAM TALUK, KOTTAYAM,, PIN - 686585

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BY ADVS.
TOM JOSE (PADINJAREKARA)
SUNNY JOSEPH
K.T.SEBASTIAN

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RESPONDENT:

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MINNU JOSEPH,
AGED 36 YEARS, D/O JOSEPH ALEXANDER,
MAPPILASSERIL HOUSE, KAILASANADU, UDUMBANCHOLA
TALUK, IDUKKI DIST., PIN - 685554

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BY ADVS.

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T.P.PRADEEP
R.K.PRASANTH(K/000475/2017)
MINIKUMARY M.V.(K/118/2019)
JIJO JOSEPH(K/000402/2022)
P.K.SATHEES KUMAR(K/607/2012)

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 07.02.2023, ALONG WITH MAT.APPEAL.391/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶73

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Mat. Appeal No.370 of 2022 and conne. cases

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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

¶78

¶79

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 7TH DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944
R.P.(FC)NO.54 OF 2023

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AGAINST THE JUDGMENT DATED 28.02.2022 IN M.C.NO.219 OF 2018

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ON THE FILE OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR

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REVISION PETITIONER:

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MINNU JOSEPH @ MARY,
AGED 33 YEARS, FLAT NO.9-C, KALLUPALAM HILL
RESIDENCY, CHALAKKUNNU, MUTTAMBALAM VILLAGE,
KOTTAYAM TALUK AND DISTRICT, PIN - 686001

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BY ADVS.
T.P.PRADEEP
MINIKUMARY M.V.
R.K.PRASANTH
P.K.SATHEES KUMAR
JIJO JOSEPH

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RESPONDENT:

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BIVIN JOHN,
AGED 38 YEARS, S/O DR.SURESH JOHN, PULIKAMPARAMBIL
HOUSE, CHANGALAM SOUTH POST, CHENGALAMKARA,
THIRUVARPU VILLAGE, KOTTAYAM TALUK, PIN - 686022

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BY ADVS.
TOM JOSE (PADINJAREKARA)
SUNNY JOSEPH(K/671/1987)
K.T.SEBASTIAN(K/1079/2001)

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 07.02.2023, ALONG WITH MAT.APPEAL.391/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat. Appeal No.370 of 2022 and conne. cases

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JUDGMENT/ORDER

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Anil K. Narendran, J.

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Since parties are one and the same, these matters are

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heard together and are being disposed of by this common judgment.

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Mat. Appeal No.370 of 2022:- The appellant- husband filed O.P.No.1022 of 2018 before the Family Court, Kottayam at Ettumanoor, against the respondent herein-wife, seeking a declaration that the marriage solemnised between

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the parties is null and void or in the alternative a decree for dissolution of marriage. That original petition ended in dismissal by the judgment and decree dated 28.02.2022. Feeling aggrieved, the appellant filed this appeal before this Court, invoking the provisions under Section 19(1) of the Family Courts Act, 1984.

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2.1. On 31.05.2022, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post.

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Mat. Appeal No.391 of 2022:- The appellant- husband is the respondent in O.P.No.1474 of 2018 on the file of the Family Court, Kottayam at Ettumanoor, which is one filed by the respondent herein-wife for restitution of conjugal

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Mat. Appeal No.370 of 2022 and conne. cases

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right. By the judgment and decree dated 28.02.2022, the Family Court allowed that original petition and the appellant herein is directed to restore his company with the respondent herein and restore the marital relationship by way of decree of restitution of conjugal rights. Feeling aggrieved, the appellant is before this Court in this appeal invoking the provisions under Section 19(1) of the Family Courts Act, 1984.

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3.1. On 16.06.2022, when this appeal came up for admission, this court admitted the matter on file and issued notice to the respondent. This Court granted an interim stay, as prayed for in I.A.No.1 of 2022.

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Mat. Appeal No.709 of 2022:- The appellant-wife filed O.P.No.44 of 2019, before the Family Court, Kottayam at Ettumanoor, against the respondent herein-husband for return of an amount of Rs.15 lakhs and gold ornaments worth of 15,39,149/-. By the judgment and decree dated 28.02.2022, that original petition was allowed in part and the appellant was directed to pay an amount of Rs.15,00,000/within a period of one month to the respondent. In case of failure, the respondent is entitled to realise the same with interest at the rate of 6% per annum from the date of decree till realisation. The claim for return of jewellery and balance

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Mat. Appeal No.370 of 2022 and conne. cases

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amount stands dismissed. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. The appeal was filed along with C.M. Application No.1 of 2022 for condonation of delay of 125 days.

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R.P.(FC)No.221 of 2022:- The petitioner-husband is the respondent in M.C.No.219 of 2018 on the file of the Family Court, Kottayam at Ettumanoor, which was one filed by the respondent herein-wife claiming maintenance. By the order dated 28.02.2022, that M.C. was allowed and the petitioner-husband was directed to pay the respondent-wife a monthly maintenance at the rate of Rs.25,000/- from the date of order. Feeling aggrieved, the petitioner is before this Court, in this revision petition, which is one filed invoking the provisions under Section 19(4) of the Family Courts Act.

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5.1. On 27.07.2022, when this revision petition came up for admission, this Court issued notice on admission to the respondent. The learned counsel for the petitioner was directed to produce the objection filed in the M.C.

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R.P.(FC)No.54 of 2023:- The petitioner-wife filed M.C.No.219 of 2018, before the Family Court, Kottayam at Ettumanoor for monthly maintenance. The said M.C. was

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Mat. Appeal No.370 of 2022 and conne. cases

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allowed in part by the order dated 28.02.2022. The said order is under challenge in R.P.(FC)No.221 of 2022, filed by the respondent herein. In this revision, the petitioner is challenging the aforesaid order of the Family Court to the extent it denied monthly maintenance from the date of application, i.e., from 10.12.2018. This revision petition is filed along with Crl.M.A.No.1 of 2022 for condonation of delay of 75 days.

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During the pendency of these matters, the parties were referred for mediation by the order dated 30.11.2022 in Mat. Appeal No.709 of 2022. The parties have settled the disputes in mediation. In terms of the settlement, the parities have filed I.A.No.1 of 2023, an application under Section 10A of the Divorce Act, seeking a decree of divorce on the ground of mutual consent. Today, the parties have filed I.A.No.2 of 2023 to dispense with the waiting period of six month for granting dissolution of marriage after filing the joint petition.

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8 . In Amardeep Singh v. Harveen Kaur [(2017)

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8 SCC 746] t he question which came up for consideration before the Apex Court was whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for a motion for passing a decree of divorce by

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Mat. Appeal No.370 of 2022 and conne. cases

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mutual consent is mandatory or can be relaxed in any exceptional situations.

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9. Section 13B of the Hindu Marriage Act, 1955,

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which deals with divorce by mutual consent, reads thus;

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“13B. Divorce by mutual consent.- (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

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(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.” (underline supplied)

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In Amardeep Singh [(2017) 8 SCC 746] the

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Apex Court considered the question whether the provisions of

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Mat. Appeal No.370 of 2022 and conne. cases

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Section 13B of the Hindu Marriage Act, 1955 laying down cooling-off period of six months is a mandatory requirement or it is open to the Family Court to waive the same having regard to the interest of justice in an individual case. The Apex Court noticed that the object of Section 13B of the Act is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them

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to rehabilitate them as per available options. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) of the Act contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The amendment was inspired by the thought that forcible perpetuation of the status of matrimony between unwilling partners did not serve any purpose. The object of the cooling-off period under Section 13B(2) of the Act was to

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safeguard against a hurried decision if there was otherwise a possibility of differences being reconciled. The object was not

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to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation.

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Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh

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Mat. Appeal No.370 of 2022 and conne. cases

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rehabilitation, the court should not be powerless in enabling the parties to have a better option. In determining the question whether a provision is mandatory or directory, language alone is not always decisive. Regard must be had to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh's Principles of Statutory Interpretation (9^th Edition,

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2004), has been cited with approval in Kailash v. Nanhku,

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[(2005) 4 SCC 480] . Applying the said principle, the Apex Court held that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2) of the Hindu Marriage Act, 1955, it can do so 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 of the Code of Civil Procedure, 1908 Section 23(2) of the Hindu Marriage Act/Section 9 of the Family Courts Act, 1984 to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

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Mat. Appeal No.370 of 2022 and conne. cases

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(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. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the court concerned.”

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Since the period mentioned in Section 13B(2) o f the Hindu Marriage Act is not mandatory but directory, it will be open to

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the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. In conducting such proceedings the court can also use the medium of videoconferencing and also permit genuine representation of the parties through close relations such as parents or siblings, where the parties are unable to appear in person for any just and valid reason, as may satisfy the court, to advance the interest of justice.

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Section 10A of the Divorce Act, 1869 deals with dissolution of marriage by mutual consent, which reads thus;

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“10A. Dissolution of marriage by mutual consent.- (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may

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Mat. Appeal No.370 of 2022 and conne. cases

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be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001 (51 of 2001), on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.

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(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.”

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(underline supplied)

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12. In Tomy Joseph v. Smitha Tomy [2018 (5)

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KHC 267] a Division Bench of this Court noticed that the provisions contained in Section 10A of the Divorce Act, 1869, are, in substance, a verbatim reproduction of the provisions contained in Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954. The only substantial difference is that instead of the period of one year mentioned in Section 13B(1) of the Hindu Marriage Act and

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Mat. Appeal No.370 of 2022 and conne. cases

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Section 28(1) of the Special Marriage Act, a period of two years of separate residence is provided under Section 10A(1) of the Divorce Act. The beneficiaries under the abovementioned provisions of different statutes are persons who want a decree of divorce by mutual consent and who file a joint petition for that relief. There can be no discrimination among them on the ground of religion. Divorce by mutual consent is a secular concept. When the Apex Court has declared the law that the ‘cooling off period’ of six months provided under Section 13B(2) of the Hindu Marriage Act is not mandatory but directory and such period can be allowed to be waived by the Court on satisfaction of certain conditions, denying that benefit to persons who are governed by the Divorce Act, 1869 would amount to unjust discrimination. Therefore, the Division Bench held that the dictum laid down by the Apex Court in Amardeep Singh [ 2017 (8) SCC 746] is applicable to a petition for divorce filed under Section 10A of the Divorce Act, 1869 and on satisfaction of the conditions laid down in that decision, the Family Court can waive the period of six months stipulated under Section 10A(2) of that Act.

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13. T oday, when these matters are taken up for

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Mat. Appeal No.370 of 2022 and conne. cases

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consideration, we have interacted with the parties in I.A.No.1 of 2023, a joint petition filed under Section 10A of the Divorce 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 2 9.10.2018 onwards , both parties 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 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, the parties can be granted a decree of divorce by mutual consent.

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14. In such circumstances, I.A.No.2 of 2023 is allowed by waiving the statutory period of six months and I.A.No.1 of 2023 is allowed by granting a decree of divorce by mutual consent under Section 10A of the Divorce Act, by dissolving the marriage solemnised between both parties on 17.04.2017.

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15. It is pointed out that in terms Clause (2) and (3) of the memorandum of settlement agreement dated 19.01.2023, the appellant-wife in Mat. Appeal No.709 of 2022 is in receipt of an amount of Rs.43,00,000/-, which has been transferred to her bank account mentioned in Clause (3). The

¶164

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Mat. Appeal No.370 of 2022 and conne. cases

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learned counsel on both sides would submit that the respondent-husband in Mat. Appeal No.709 of 2022 shall file an application before the Family Court, Kottayam to lift the order of attachment in I.A.No.123 of 2019 in O.P.No.44 of 2019. The aforesaid submissions made by the learned counsel on both sides are recorded.

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Accordingly, these matters are disposed of in terms of the terms and conditions contained in the memorandum of settlement agreement dated 19.01.2023, which shall form part of this judgment. After lifting the order of attachment, the Family Court, Kottayam shall communicate the said order to the concerned Sub Registrar Office, forthwith.

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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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MIN

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Mat. Appeal No.370 of 2022 and conne. cases

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APPENDIX OF RPFC 54/2023

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PETITIONER ANNEXURES

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ANNEXURE A-1 A CERTIFIED COPY OF THE COMMON
JUDGMENT OF FAMILY COURT, KOTTAYAM,
ETTUMANOOR, DATED 28/02/2022

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Mat. Appeal No.370 of 2022 and conne. cases

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Mat. Appeal No.370 of 2022 and conne. cases

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Mat. Appeal No.370 of 2022 and conne. cases

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Mat. Appeal No.370 of 2022 and conne. cases

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Mat. Appeal No.370 of 2022 and conne. cases

Bivin John v. Minnu Joseph

Case brief

What is this about?

What did the court decide?

Bivin John v. Minnu Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

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