Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 129

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K.NARENDRAN, P.G. AJITHKUMAR, JJ.
Johny Sebastian, S/o Sebastian – Appellant
Versus
Jossy @ Saramma. K.J – Respondent
Mat.Appeal No.518 of 2022
Decided on : 25-01-2023

Advocates:
Advocate Appeared:
For the Appellant : M.PROMODH KUMAR, MAYA CHANDRAN, ABIMALEK C VALSAN
For the Respondent: SRI.ELDHO PAUL

Point of Law: Section 13B of Hindu Marriage Act, 1955, which deals with divorce by mutual consent.

Headnote:
Special Marriage Act, 1954 - Section 27(b), (d), 28 - Family Courts Act, 1984 - Section 19(1) - Hindu Marriage Act, 1955 - Section 13B, (2) - Divorce Act, 1869 - Section 10A - Decree of divorce - Dissolve marriage solemnised - Mutual consent - Seeking a decree of divorce for dissolving marriage solemnised between them - Petition ended in dismissal by judgment and decree - Aggrieved, appellant is before Court invoking provisions under Section 19(1) of Family Courts Act, 1984 – Divorce by mutual consent is a secular concept. (Para 7)
Finding of the Court :
When this matter is taken up for consideration, Court have interacted with parties in I.A., a joint petition filed under Section 28 of Special Marriage Act - They have stated in categorical terms that entire disputes between them have already been settled, and they have consented for a decree of divorce by mutual consent - Since parties have genuinely settled their disputes in mediation and since they are living separately, Court find that cooling period of six months will only prolong their agony - Therefore, Court is satisfied that this is a fit case in which without waiting for statutory period of six months, parties can be granted a decree of divorce by mutual consent.
Result: Appeal disposed of.

JUDGMENT :

Anil K. Narendran, J.

The appellant filed O.P.No.133 of 2018 before the Family Court, Tirur, against the respondent herein-wife, under Section 27(b) and (d) of the Special Marriage Act, 1954, seeking a decree of divorce for dissolving the marriage solemnised between them on 18.12.2004. That original petition ended in dismissal by the judgment and decree dated 26.03.2022. Feeling aggrieved, the appellant is before this Court in this appeal invoking the provisions under Section 19(1) of the Family Courts Act, 1984.

2. On 01.08.2022, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent.

3. During the pendency of this appeal, the parties have settled their disputes and entered into a settlement agreement dated 16.12.2022, which is placed on record as Annexure 1, along with I.A.No.1 of 2023, a petition filed under Section 28 of the Special Marriage Act, 1954 seeking a decree of divorce by mutual consent. The said interlocutory application filed on 08.01.2023 is supported by I.A.No.2 of 2023 filed on 23.01.2023 seeking an order to waive the statutory period of six months specified in Section 28 of the Special Marriage Act. It is stated in the affidavit filed in support of the said interlocutory application that the parties are residing separately from August, 2016 onwards.

4. In Amardeep Singh v. Harveen Kaur [(2017) 8 SCC 746] the 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 mutual consent is mandatory or can be relaxed in any exceptional situations.

5. Section 13B of the Hindu Marriage Act, 1955, which deals with divorce by mutual consent, reads thus;

“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.

(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)

5. In Amardeep Singh [(2017) 8 SCC 746] the Apex Court considered the question whether the provisions of 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 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 Ac