Disposed

Revathi.M v. Sanoj

Kerala HC17 Jan 2023OP (FC)/422/2022

Case brief

AI extract

What is this about?

Held that a divorce application under Section 13B of the Hindu Marriage Act cannot be filed directly under Article 227. Since parties settled via mediation, the joint divorce petition must be filed in the Family Court with an application to waive the six-month waiting period.

What did the court decide?

Petitioner's original petition dismissed; parties directed to file joint divorce petition and application to waive six-month period in Family Court within one week.

Revathi.M Vs Sanoj — 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
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944

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OP (FC) NO. 422 OF 2022

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CONSIDERATION OF O.P.NO.71 OF 2020 OF FAMILY COURT,
KASARAGOD

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PETITIONER:

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REVATHI.M
AGED 29 YEARS, D/O.RAJMOHAN A.M.
'PRARTHANA', KRISHNA NAGAR
VIDYANAGAR, KASARAGOD,, PIN - 671123

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BY ADVS.
M.SASINDRAN
A.ARUNKUMAR

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RESPONDENT:

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SANOJ
S/O.SASHINDRAN P., CHAITHANYAM, PATTATHANAM
BEKAL POST, PALLIKKARA - II
KOTTIKULAM VILLAGE, HOSDURG TALUK
KASARAGOD DISTRICT, PIN - 671318

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BY ADVS.
RONY JOSE
ENOCH DAVID SIMON JOEL(K/925/2009)
S.SREEDEV(K/1219/2006)
LEO LUKOSE(K/001131/2016)
CIMIL CHERIAN KOTTALIL(K/345/2017)

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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O.P.(FC)No.422 of 2022

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JUDGMENT

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Anil K. Narendran, J.

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The petitioner is the respondent in O.P.No.71 of 2020 on the file of the Family Court, Kasaragod, which is one filed by the respondent herein-husband, seeking a declaration that the marriage solemnized between the parties on 25.08.2019 is null and void. The petitioner has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P12 order dated 22.06.2022 of the Family Court in O.P.No.71 of 2020, whereby the preliminary issue raised on the maintainability of that original petition was found against the petitioner. The petitioner has also sought for a declaration that Ext.P1 original petition is not maintainable before the Family Court.

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2. On 25.07.2022, when this original petition came up for admission, this Court issued notice before admission to the respondent by speed post. Simultaneously, the petitioner was permitted to serve notice on the respondent through his counsel before the Family Court, Kasaragod. This Court granted an interim order staying all further proceedings pursuant to Ext.P12, pending disposal of this original petition. The said interim order,

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O.P.(FC)No.422 of 2022

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which was extended from time to time, is still in force.

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3. During the pendency of this original petition, the parties were referred for mediation. They have settled the disputes in mediation and the memorandum of agreement dated 03.01.2023 executed between the parties is placed on record along with the report dated 03.01.2023 of the Mediator. In terms of the terms and conditions contained in the memorandum of agreement dated 03.01.2023, I.A.Nos.1 and 2 of 2023 have been filed in this original petition. I.A.No.2 of 2023 is a joint petition filed under Section 13B of the Hindu Marriage Act, 1955 seeking a decree of divorce on mutual consent, and I.A.No.1 of 2023 is one filed invoking the provisions under Section 13B(2) of the Act, to waive the statutory period of six months.

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4. On 16.01.2023, when this original petition came up for consideration, both parties were personally present in Court. We have interacted with the parties. By the order dated 16.01.2023, this original petition was ordered to be listed today, for the learned counsel on both sides to address arguments on the maintainability of those interlocutory applications in an original petition filed under Article 227 of the Constitution of India. On 16.01.2023, it was pointed out before this Court that, O.P.No.71

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O.P.(FC)No.422 of 2022

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of 2020 filed by the respondent herein before the Family Court, Kasaragod has already been dismissed as withdrawn, based on the mediation agreement.

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5. Heard the learned counsel for the petitioner and also the learned counsel for the respondent.

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6. As already noticed hereinbefore, this original petition

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is one filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. An application for divorce on mutual consent, invoking the provision under Section 13B of the Hindu Marriage Act, can be entertained before the Family Court having territorial jurisdiction or in an appeal pending before this Court, under Section 19(1) of the Family Courts Act, 1984 arising out of the judgment and decree of the Family Court. Such an application cannot be entertained in an original petition filed before this Court under Article 227 of the Constitution of India, since no decree of divorce can be passed in such an original

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petition, in exercise of the supervisory jurisdiction.

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7. The learned counsel for the petitioner and also the

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learned counsel for the respondent would submit that parties shall file a joint petition, invoking the provisions under Section 13B of

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the Hindu Marriage Act, before the Family Court, Kasaragod,

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O.P.(FC)No.422 of 2022

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along with an application under Section 13B(2) of the said Act to waive the statutory period of six months, since both parties are residing separately from December, 2019 onwards.

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8. In such circumstances, this original petition is disposed of in terms of the terms and conditions contained in the memorandum of agreement dated 03.01.2023, subject to the modification that the joint petition for divorce on mutual consent under Section 13B of the Hindu Marriage Act, in terms of that settlement, shall be filed before the Family Court, Kasaragod, along with an application under Section 13B(2) of the said Act to waive the statutory period of six months.

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9. The learned counsel on both sides would submit that the parties shall file a joint petition before the Family Court, Kasaragod, under Section 13B of the Hindu Marriage Act, for a decree of divorce on mutual consent, within one week. The learned counsel for the respondent would submit that since the respondent, who is a member of the Armed Forces, has to rejoin duty immediately, he shall file an application before the Family Court, Kasaragod seeking permission to appear online in the proceedings in the joint petition filed under Section 13B of the said Act.

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O.P.(FC)No.422 of 2022

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Having considered the submissions made at the Bar, we

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deem it appropriate to direct the Family Court, Kasaragod or the Court holding charge of the said Family Court to consider the original petition filed under Section 13B of the Hindu Marriage

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Act, along with the interlocutory applications, as expeditiously as possible, taking note of the settlement of disputes in mediation.

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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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O.P.(FC)No.422 of 2022

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O.P.(FC)No.422 of 2022

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O.P.(FC)No.422 of 2022

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APPENDIX

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PETITIONER EXHIBITS

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`ExhibitP1`	`A TRUE COPY OF THE PETITION O.P.NO.71` `OF 2020 OF THE FAMILY COURT, KASARAGOD`
`ExhibitP2`	`THE PETITIONER PRODUCES THE CERTIFICATE` `OF REGISTRATION AS A DOCTOR, IN THE` `KARNATAKA MEDICAL COUNCIL DATED 05-03-` `2016`
`ExhibitP3`	`A TRUE COPY OF THE EXPERIENCE CERTIFI-` `CATE DATED 28-05-2016 ISSUED BY THE` `DISTRICT PROGRAMME MANAGER, AROGYA KER-` `ALA, NHM KASARAGOD`
`ExhibitP4`	`A TRUE COPY OF THE EXPERIENCE CERTIFI-` `CATE DATED 21-10-2020 BY AROGYA KERALAM` `KASARAGOD`
`ExhibitP5`	`A TRUE COPY OF THE SUMMONS RECEIVED` `FROM THE SESSIONS COURT, KASARAGOD` `DATED 26-03-2018, TO THE PETITIONER AS` `AN OFFICIAL WITNESS`
`ExhibitP6`	`A TRUE COPY OF THE CERTIFICATE DATED` `27-02-2021 ISSUED BY THE SESSIONS` `COURT, KASARAGOD`
`Exhibit 6A`	`A TRUE COPY OF THE CERTIFICATE SHOWING` `THE ADDITIONAL QUALIFICATION OF THE PE-` `TITIONER ISSUED BY THE KARNATAKA MEDI-` `CAL COUNCIL IS PRODUCED HEREWITH`
`ExhibitP7`	`A TRUE COPY OF THE COUNTER AFFIDAVIT` `FILED BY THE PETITIONER IN O.P.NO.71 OF` `2021 BEFORE THE FAMILY COURT, KASARAGOD`
`Exhibit8`	`A TRUE COPY OF THE I.A.NO.1 OF 2022 IN` `O.P. 71 OF 2021, AND THE AFFIDAVIT IN` `SUPPORT OF THE SAME IS PRODUCED HERE-` `WITH`
`Exhibit9`	`THE RESPONDENT HAS FILED A COUNTER TO` `THE I.A. ON 18-03-2022 WHICH IS PRO-` `DUCED HEREWITH`

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O.P.(FC)No.422 of 2022

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Exhibit10. A TRUE COPY OF THE ISSUE FRAMED BY
THE FAMILY COURT, DATED 23-03-2022 IS
PRODUCED HEREWITH
Exhibit11A TRUE COPY OF THE JUDGMENT DATED 27-
05-2022 IN O.P.(FC) 193 OF 2022 IS PRO-
DUCED HEREWITH
Exhibit12. A TRUE COPY OF THE ORDER DATED
22.06.2022 IN OP 71/2020 OF THE FAMILY
COURT, KASARAGOD IS PRODUCED HEREWITH

Revathi.M v. Sanoj

Case brief

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Revathi.M v. Sanoj

Case brief

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