Disposed

Arshak Nath C.P v. Monisha C.S

Kerala HC2 Apr 2024Mat.Appeal/548/2023

Case brief

AI extract

What is this about?

Matrimonial appeal against a Family Court order directing return of gold ornaments and cash was settled through mediation. The parties agreed to dissolve the marriage by mutual consent under Section 13B, settled monetary claims, and the High Court waived the cooling-off period and dissolved the marriage in terms of the agreement.

What did the court decide?

Appeal disposed per Memorandum of Agreement; marriage dissolved by mutual consent with waiver of six-month period; return of gold ornaments and Rs.4,30,000 recorded.

Arshak Nath C.P Vs Monisha C.S — Maintenance and Alimony | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THEHONOURABLEMR.JUSTICEP.M.MANOJ
TUESDAY,THE2NDDAYOFAPRIL2024/13THCHAITHRA,1946
MAT.APPEALNO.548OF2023

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AGAINSTTHEJUDGMENTDATEDINOPNO.532OF2019OF
FAMILYCOURT,KALPETTA
APPELLANT/RESPONDENT:

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ARSHAKNATHC.P.,AGED31YEARS
S/O.VISWAN,CHANDANAPARAMBATHHOUSE,
ELATHOORP.O.,KOZHIKODE,PIN-673303

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BYADVS.
P.V.ANOOP
PHIJOPRADEESHPHILIP
ANTONYTHOMAS
ANJURS.

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RESPONDENT/PETITIONER:

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MONISHAC.S
AGED25YEARS
D/OSHAJIC.K,CHETHUKUNNILHOUSE,
POOMULLAP.O.,SULTHANBATHERYTALUK,
WAYANADDISTRICT,PIN-673592

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BYADVS.
NISHINGEORGEVIJAYABABU(K/966/2001)
HAFYPUNTHALAWILSON(K/001559/2001)
KCMOHAMEDRASHID

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OTHER PRESENT:

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SMT ANNAMMA PHILIP, FOR PARTY RESPONDENT.

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THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON
02.04.2024,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING:

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Mat. Appeal No. 548 of 2023

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J U D G M E N T

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Raja Vijayaraghavan, J.

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This Matrimonial Appeal is preferred by the respondent in O.P.No. 532/2019 on the file of the Family Court, Kalpetta.

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The above case was preferred by the respondent-wife seeking

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return of money and gold ornaments from the appellant-husband. The learned Family Court, by judgment dated 14/3/2023, allowed the Original Petition and ordered the appellant-husband to return the gold ornaments and cash. Challenging the judgment, the appellant-husband has preferred this appeal.

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While the appeal was pending consideration of this Court,

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both parties requested that the matter be referred to mediation to make an attempt to resolve their disputes.

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4 We are happy to note that the parties have finally reached an amicable settlement and they have decided to part ways. All monetary aspects have been settled. A Memorandum of Agreement executed under Section 89 of the Code of Civil Procedure, read with Rules 24 and 25 of the

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Mat. Appeal No. 548 of 2023

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Civil Procedure (Alternate Dispute Resolution) Rules, 2008, has been

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placed on record.

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Among other conditions, the parties have also agreed to dissolve their marital bond by filing a petition under Section 13B of the Hindu Marriage Act for divorce on mutual consent.

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On the cover of the agreement so executed, I.A No. 1 of 2024 has been filed seeking to waive the statutory period of six months. They have stated in the application that the marriage between the parties was solemnized on 31/12/2017, and the same has broken down irretrievably without any scope of reunion. It is further stated that they are finding it difficult to coexist and cohabit in harmony and have been living separately for the last five years. It is stated that they had last resided together in Kozhikode and have been living separately since 25/3/2019. It is also stated that the application has been filed with due application of mind and there is no coercion or influence in filing the petition. We had allowed the application.

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They have filed IA No.2 of 2024 seeking to dissolve the marriage between the parties on mutual consent.

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Mat. Appeal No. 548 of 2023

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We directed the parties to appear before us in person. We have interacted with them to ascertain whether they have genuinely settled their differences including alimony or any other pending issues between the parties. They answered in the affirmative. Both of them submitted that they had filed the petition for divorce by mutual consent out of their own free will and volition and there is absolutely no chance for reconciliation and reunion.

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In Amardeep Singh¹ , the Apex Court while considering the

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grant of divorce by mutual consent by waiving the cooling of period had occasion to observe as under:

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Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under S.13B(2), it can do so after considering the following:

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i) the statutory period of six months specified in S.13B(2), in addition to the statutory period of one year under S.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 XXXII A R.3 CPC / S.23(2) of the Act / S.9 of the Family Courts Act to reunite the parties have failed a nd there is no likelihood of success in that direction by any further efforts;

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1Amardeep Singh v. Harveen Kaur (2017 (4) KHC 683)

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Mat. Appeal No. 548 of 2023

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iii) the parties have genuinely settled their differences including alimony, custody of the 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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After having carefully considered the facts of the instant case and after interacting with the parties, we are satisfied that it would be in the interest of both sides to put a quietus to all litigations and to save the parties from any further agony.

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In that view of the matter, this appeal is disposed of in terms of the Memorandum of Agreement entered into between the parties. The Memorandum of Agreement shall form part of this judgment. The marriage between the parties solemnized on 31/12/2017 will stand dissolved based on mutual consent with effect from today.

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sd/-

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RAJA VIJAYARAGHAVAN V, JUDGE

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sd/- P.M.MANOJ JUDGE

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PS/2/4/24

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Mat. Appeal No. 548 of 2023

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APPENDIX OF MAT.APPEAL 548/2023

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PETITIONERANNEXURES

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Annexure-A1TRUECOPYOFTHEMEDICALCERTIFICATEIN
FAVOUROFVANAJAMOTHEROFTHEAPPELLANT
ISSUEDBYDR.K.VISWANATHANDATED
10/04/2023
Annexure-A2THEPROCEEDINGSOFTHEO.P532/2019OF
FAMILYCOURT,KALPETTA

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BEFORE ThE HONOulIABLE HIGH COURT OF KERALA AT ERIVAKULAM

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Mat ADDeal No. 548/2023

Asshak Nath C,P

Appellant

Vs.

Monisha C.S

Respondent

MEMORANDRUM OF AGREEMENT UNDER SECTION 89 0F THE CODE OF CIVIL pROcEDURE READ wlTrl RULEs 24 & 25 oF THE clvIL pF`OcEDURE (AITERNAI-IVE DISPUTE RESOLUTION), RULES. 2008:

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The dispute between the parties is discLJssed and settled in mediation in the following terms :-

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In full and final settlement of the dispute between the parites, both parties agreed to dissolve their marital bond by filing a petition under Sec 13 8, of the Hindu Marriage Act, for divorce on mutual consent forthwith. Both the parties signed the petition so prepared to be filed before the Hon'ble High Court of Kerala simultaneous to the execution of this Settlement Agreement.

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The respondent issued a cheque bearing No.01001818 drawn to the Account of her mother Smt. Indira T.K bearing No.0765053000002647 with the South Indian Bank, Meenangadi Branch, Wayanad dated 28/02#024 for a sum of Rs,4,30,000/(Rupees Four lakhs thirty thousand only) as mutually agreed between them and the petitioner accepted the same.

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The weight of the gold ornaments returnable by the petitioner to the respondent is mutually agreed between the parties as 38,5 soveriegn and a diamond necklace and diamong bangle. The petitioner produced those jewelly today and those are weighed in the presence of both parties at the Josco jewelly, M.G Road, Emakulam and the total weieht of the gold ornaments is affirmed as 38.5 soveriegn. Those jewellery along with the diamond necklace and diamong bangle are returned by the petitioner to the respondent and the latter accepted the same simulatenous to the execution of this Settlement Agreement.

ADnellant

Rescondeht

Arshak Nath C,P

Monisha C.S

ltr4la State Mediation and Conciliation Centri.. High Court of Kerala Kochi -682 031

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-2-

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The petitioner agreed to withdraw OP.No.85/2020 filed by him for restitution of conjugal rights before the Hon'ble Family Court, Kozhikode and CMP.No.3164/2022 filed before the Hon'ble Court of jFCM- Koyilandy and the respondent agreed to withdraw OP.No.2717/2023 filed by her before the Hon.ble Family Court, Emakulam for divorce and MC.No.33/2021 filed before the Hon.ble Court of jFCM, Kakkanad under the provisions of Protection of Women from Domestic Violence Act.

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The parties mutually agreed to file Crl.MC before the Hon.ble High Court of Kerala for quashing CC,No.485/2022 in Crime No. 173/2022 of Vellayil Police Station charged u/s 406, 498 A and 506 of lpc pending before the Hon'ble Court of jFCM-lv Kozhikode. The respondent agreed to file affidavit required to be submitted before the Hon.ble High Court in the said proceedings for quashing the criminal case.

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Both parties agreed to make a request before the Hon'ble High court ofKerala seeking a decree in Mat Appeal No.548/2023 in term of this Settlement Agreement by recording the same.

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Dated this the 27th day of February, 2024.

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ADDellant

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Arshak Nath C.P

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Counsel for the Appellant

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Rescondent
Monisha C,S
I<c ~oLtry^^cc/
ec.) L-.¢
Counsel for Respondent /i/ '3f'/ / i 3

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The above Settlement Agreement is authenticated by me,