Allowed

Manoj a.K., v. Lini M.

Kerala HC5 Jan 2023Mat.Appeal/774/2019

Case brief

AI extract

What is this about?

The High Court disposed of matrimonial appeals concerning maintenance and divorce petitions. After mediation and a settlement agreement, the Court granted divorce by mutual consent and waived the mandatory six-month cooling period under Section 13B(2) of the Hindu Marriage Act due to prolonged separation.

What did the court decide?

Decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955; waiver of the six-month statutory waiting period.

Manoj a.K., Vs Lini M. — Matrimonial and Divorce | Kerala HC (2023)

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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 THURSDAY, THE 5^TH DAY OF JANUARY 2023 / 15TH POUSHA, 1944 MAT.APPEAL NO. 746 OF 2019

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AGAINST THE JUDGMENT AND DECREE DATED 05.04.2019 IN O.P.NO.71 OF 2018 ON THE FILE OF THE FAMILY COURT,KOZHIKODE

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APPELLANT/RESPONDENT:

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MANOJ A.K.,

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(ADDRESS OF THE RESPONDENT WRONGLY SHOWN AS ARUKANDATHIL, P.C.PALAM IN O.P.NO.71/2018) AGED 43 YEARS, S/O.VELAYUDHAN, KULANGARAKKANDI HOUSE, KAKKUR, NARIKKUNI.P.O., KOZHIKODE, PIN -673 585.

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BY ADVS. M.PROMODH KUMAR SMT.MAYA CHANDRAN

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RESPONDENT/PETITIONER:

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LINI M. AGED 32 YEARS, D/O.MADHAVAN, MINI NIVAS, THARUPPAKKANDI, KAKKUR.P.O., KOZHIKODE - 673 613. BY ADV SMT.P.A.REZIYA

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 05.01.2023, ALONG WITH Mat.Appeal.774/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal Nos.746 & 774 of 2019

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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 THURSDAY, THE 5^TH DAY OF JANUARY 2023 / 15TH POUSHA, 1944 MAT.APPEAL NO. 774 OF 2019

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AGAINST THE JUDGMENT AND DECREE DATED 05.04.2019 IN O.P.NO.1172 OF 2017 ON THE FILE OF THE FAMILY

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COURT,KOZHIKODE

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APPELLANT/PETITIONER:

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MANOJ A.K., AGED 43 YEARS S/O.VELAYUDHAN, KULANGARAKKANDI HOUSE, KAKKUR, NARIKKUNI P.O., KOZHIKODE, PIN - 673 585.

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BY ADVS. M.PROMODH KUMAR SMT.MAYA CHANDRAN

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RESPONDENT/RESPONDENT:

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LINI M., AGED 32 YEARS, D/O.MADHAVAN, MINI NIVAS, THARUPPAKKANDI, KAKKUR P.O., KOZHIKODE - 673 613.

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 05.01.2023, ALONG WITH Mat.Appeal.746/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal Nos.746 & 774 of 2019

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JUDGMENT

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Anil K. Narendran, J.

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Since the parties are one and the same, these matters are heard together and are being disposed of by this common judgment.

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Mat. Appeal No.746 of 2019:- The appellant is the respondent in O.P.No.71 of 2018 on the file of the Family Court, Kozhikode, which is one filed by the respondent herein-wife claiming past maintenance. That original petition was allowed by the judgment and decree dated 05.04.2019, whereby a decree was passed in favour of the respondent herein allowing her to realise a sum of Rs.1,44,000/- (Rupees one lakh forty four thousand only) as past maintenance allowance at the rate of Rs.4,000/- per month for 36 months from 02.01.2015 to 02.01.2018, from the appellant herein and his assets.

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Challenging the judgment and decree dated 05.04.2019 in O.P.No.71 of 2018, the appellant has approached this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984, along with C.M.Appl.No.1 of 2019 for condonation of delay.

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Mat.Appeal Nos.746 & 774 of 2019

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Mat. Appeal No.774 of 2019:- The appellant has

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filed O.P.No.1172 of 2017 before the Family Court, Kozhikode, against the respondent herein-wife seeking a decree of dissolution of the marriage solemnised between them on 03.02.2014, on the ground of cruelty and desertion. That original petition ended in dismissal by the judgment and decree dated 05.04.2019. Feeling aggrieved, the appellant has filed this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984, along with C.M.Appl.No.1 of 2019 for condonation of delay.

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5 . During the pendency of these appeals, the parties were referred for mediation before the Ernakulam Mediation Centre, in the premises of this Court, on 18.10.2022. The parties have settled the disputes in mediation and a memorandum of settlement agreement dated 03.11.2022 is placed on record along with the report dated 06.12.2022 of the Mediator.

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On 07.12.2022, when these appeals were taken up for consideration, after arguing for sometime, the learned counsel on both sides submitted that since the parties have

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Mat.Appeal Nos.746 & 774 of 2019

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settled the entire disputes in mediation, they shall file a joint application for divorce on mutual consent, along with an application under Section 13B(2) of the Hindu Marriage Act, 1955, to waive the statutory time limit.

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7 . Heard the learned counsel for the appellanthusband and also the learned counsel for the respondent-wife.

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8 . 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; 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;

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Mat.Appeal Nos.746 & 774 of 2019

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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.”

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9 . On 03.01.2023, the parties have filed I.A.No.1 of

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2023 and I.A.No.2 of 2023 in Mat.Appeal No.744 of 2019 as Bench Mark, which are supported by individual affidavits of both parties, under Section 13B of the Act.

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10. We have interacted with the parties. 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 and the respondent are living separately immediately after the marriage from the year 2014 onwards. 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.

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Mat.Appeal Nos.746 & 774 of 2019

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11. In such circumstances, I.A.No.1 of 2023 in Mat.Appeal No.774 of 2019 is allowed by granting a decree of divorce by mutual consent under Section 13B of the Act, by dissolving the marriage solemnised between the appellanthusband and respondent-wife on 03.02.2014 and I.A.No.2 of 2023 in Mat.Appeal No.774 of 2019 is allowed by waiving the statutory period of six months provided under Section 13B(2) of the Act.

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The appeals are accordingly allowed in terms of the terms and conditions contained in the memorandum of settlement agreement dated 03.01.2022, except clause No.6 , which shall form part of this judgment.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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dkr

Manoj a.K., v. Lini M.

Case brief

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Manoj a.K., v. Lini M.

Case brief

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