IMPORTANT POINTS
To present a petition for divorce before the expiry of one year from the date of marriage, leave of the Court has to be obtained, as contemplated under Section 29 of Act, even if the prayer for divorce is an alternative relief; if not, the Court has the discretion to order the decree to be effective only after one year from the date of the marriage, and in case the petitioner has obtained leave by misrepresentation or concealment, the Court may also dismiss the petition. Nevertheless, on a literal interpretation of the above provision, a petition for divorce cannot be dismissed for want of leave under Section 29 of the Act, other than following the procedure provided under the proviso to sub-section (1) of Section 29 of the Act.

JUDGMENT :

C.S. DIAS, J.

1. An order holding that leave of the Court is not necessary to institute a petition for divorce, after the expiry of one year from the date of marriage, is under challenge in this appeal.

2. The respondent in this appeal filed O.P.No.2166 of 2017 before the Family Court, Ernakulam, to annul his marriage with the appellant by a decree of nullity or in the alternative to dissolve his marriage with the appellant by a decree of divorce.

3. The kernel of the facts is: the respondent got acquainted with the appellant through Facebook. The respondent took the appellant for outings and had physical relationship with her. In due course, the appellant expressed her desire to marry the respondent, but he snubbed her. The appellant on discovering that the respondent was intending to get married to another woman, threatened to commit suicide. On 08.09.2016, Sub-Inspector of Police, Udayamperoor Police Station, directed the respondent and his father to meet him in connection with a complaint filed by the appellant that the respondent had sexual harassed her. The Police Officer used swear words and commanded the respondent to marry the appellant, or else he would register a criminal case against the respondent and his relatives and get them incarcerated. Consequently, due to the threat and coercion of the appellant, in connivance with the Police, on 07.11.2016, the marriage between the respondent and the appellant was soleminised before the Marriage Officer, Thripunithura, under the Special Marriage Act, 1954 (for brevity referred to as "Act"). The appellant and the respondent have never cohabitated. The respondent prayed that a decree of nullity or in the alternative a decree of divorce may be passed dissolving his marriage with the appellant.

4. The petition was presented before the Family Court on 03.11.2017. The appellant and the respondent were referred for counselling. After the conciliation proceedings failed, the case was adjourned for the written objection of the appellant.

5. The appellant then filed I.A.No.3498 of 2019, challenging the maintainability of the petition, on the ground that the respondent had not obtained leave of the Court as provided under Section 29 of the Act, since the petition was presented before the expiry of one year from the date of marriage.

6. The respondent filed an objection to the application, inter alia, contending that there is no prohibition either in the Family Courts Act or the Code of Civil Procedure, which bars the filing of a petition for a decree of nullity with an alternative prayer for divorce. But, it was due to an inadvertent oversight that the application seeking leave was not filed along with the petition. The omission is only a curable irregularity. The cruelty inflicted by the appellant has caused exceptional depravity and severe hardship to the respondent. Although the Court had directed the appellant to file her objection to the petition, she has not filed her objection even after four posting dates. Nonetheless, the respondent has filed a separate application seeking ex-post-facto leave, which may be allowed.

7. Along with the above application, the appellant also filed I.A.No.3499 of 2019, seeking an order to direct the respondent to pay alimony pendente lite at the rate of Rs.21,800/-per mensum. The respondent filed I.A.No.7380 of 2019, seeking ex post facto leave to present the petition.

8. The learned Judge of the Family Court consolidated and jointly heard the above-numbered three applications. By a common order dated 19.12.2019, the Family Court dismissed I.A.No.3498 of 2019, holding that even though leave was not sought for at the time of presentation of the petition, as the statutory time period of one year has elapsed, there is no necessity to return the petition, and the alternative prayer for divorce is maintainable. I.A.No.7380 of 2019 filed by the respondent was dismissed as infructuous. The appellant's application for alimony pendente lite was partly al