Point of law: Requirement under Section 13B(2) of Hindu Marriage Act is the “motion of both parties”.

JUDGMENT :

Anil K. Narendran, J.

The appellant is the 1st petitioner in O.P.No.2351 of 2019 on the file of the Family Court, Thiruvananthapuram, a joint petition filed by the appellant-husband along with the respondent herein-wife, under Section 13B of the Hindu Marriage Act, 1955, seeking a decree of divorce by mutual consent to dissolve the marriage solemnised between them on 26.05.2010 at Crown Auditorium, Kallumkadavu, Pathanapuram, in accordance with the customary rites and ceremonies. When that original petition came up for consideration, the respondent herein filed a memo dated 12.04.2021, withdrawing her consent for a decree of divorce by mutual consent. On 22.04.2021, the Family Court noticed that the 2nd petitioner, i.e., the respondent herein, has withdrawn her consent and filed a memo. The 1st petitioner-husband was absent. Further, the parties were continuously absent. Therefore, the Family Court dismissed O.P.No.2351 of 2019 by the judgment and decree dated 22.04.2021. 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 28.06.2022, when this appeal came up for admission, this Court issued urgent notice to the respondent by speed post. On 06.10.2022 when the appeal came up for consideration, lower court records were called for.

3. Heard the learned counsel for the appellant-husband and the learned counsel for the respondent-wife.

4. The learned counsel for the appellant relied on the decision of the Apex Court in Anil Kumar Jain v. Maya Jain [(2009) 10 SCC 415], the judgment of a Division Bench of this Court in Benny v. Mini [2021 (1) KHC 723] and the judgment of a learned Single Judge of the Bombay High Court in Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari [AIR 2011 Bom. 119]. On the other hand, the learned counsel for the respondent-wife relied on the judgment of a Division Bench of this Court in Rajesh R. Nair v. Meera Babu [2014 (1) KHC 83] and referred to paragraph 9 of the Division Bench decision in Benny [2021 (1) KHC 723].

5. The marriage between the appellant and the respondent was solemnised on 26.05.2010, in accordance with the customary rites and ceremonies, and out of the wedlock, a male child was born to them on 15.04.2011, who is presently aged 12 years. Both parties are living separately from 20.06.2017 onwards. According to the appellant, since the marital relationship between the parties has been irretrievably broken down, at the intervention of senior members of the family, well-wishers and mediators, the parties have mutually decided to dissolve their marriage, after settling all the disputes between them. They decided to file a joint petition under Section 13B of the Hindu Marriage Act seeking a decree of divorce by mutual consent. Accordingly, a compromise agreement dated 11.10.2019 was entered into between the parties, which is produced along with this appeal as an additional document, in which the father of the appellant signed as the first witness and the father of the respondent as the second witness.

6. In clause (1) of the agreement dated 11.10.2019, it is stated that the marriage between the appellant and the respondent was solemnised on 26.05.2010 at Crown Auditorium, Pathanapuram in Kollam District, as per Hindu religious custom and practices. Out of that wedlock, a male child named Nishal Jayaraj, who is presently aged 12 years, was born. In clause (2) of the agreement, it is stated that the appellant and the respondent have filed O.P.No.2351 of 2019 before the Family Court, Thiruvananthapuram, on 11.10.2019, for dissolving their marriage by mutual consent. As per clause (3) of the agreement, gold ornaments worn by the respondent at the time of marriage have been returned to her, which she had acknowledged. As per clause (4) of the agreement, the custody of the minor child shall be with the respondent and the appellant shall have the right to meet the child at any time and also to c