Back
2022 Supreme(Online)(KER) 59739
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
UNNIKRISHNANELAYATH.C.N – Appellant
Versus
VINEETHA.C.M – Respondent
Mat.Appeal/493/2019
K.J.MANU RAJ, K.VINAYA RAVI KRISHNAN, S.JIJI, A.R.ANI, M.M.BABY
Parties can waive the statutory cooling-off period for divorce under Section 13B(2) if they have settled all disputes and demonstrated genuine intentions to dissolve their marriage.
Headnote:
Divorce - Hindu Marriage Act - [Section 13(1)(ib), 13B] - Summary: The court granted a divorce by mutual consent, waiving the six-month cooling-off period, citing previous separation and settled disputes, following the precedent in Amardeep Singh v. Harveen Kaur.
Fact of the Case:
The appellant sought divorce based on desertion; the original petition was dismissed. Subsequent petitions involved custody and maintenance disputes, leading to mediation results where both parties agreed to a settlement including maintenance payments and custody arrangements.
Issues: Whether the cooling-off period mandated by Section 13B(2) can be waived in light of the agreements reached between the parties.
Ratio Decidendi: A divorce can be granted by mutual consent without the obligatory cooling-off period if parties have genuinely settled all disputes and have been living separately.
Final Decision: The court granted a decree of divorce by mutual consent, waiving the statutory cooling-off period.
JUDGMENT/ORDER
Anil K. Narendran, J.
Since common issues are raised, these appeals and revision petition are heard together and are being disposed of by this common order/judgment.
2. Mat.Appeal No.493 of 2019:- The appellant is the petitioner in O.P.No.557 of 2016 on the file of the Family Court, Muvattupuzha, which is a petition filed against the respondent herein-wife seeking a decree of divorce on the ground of desertion, invoking the provisions under Section 13 (1)(ib) of the Hindu Marriage Act, 1955 . By the judgment and decree dated 05.04.2019, the said original petition stands dismissed. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Section 19 (1) of the Family Courts Act, 1984 .
2.1. On 08.07.2019, when this appeal came up for admission, this Court admitted the matter on file and issued notice by speed post to the respondent.
3. Mat.Appeal No.391 of 2021:- The appellant is the petitioner in O.P.No.123 of 2016 on the file of the Family Court, Muvattupuzha, an original petition seeking permanent custody of two minor children and for appointing him as their guardian, which was disposed of by the judgment and decree dated 11.08.2017, by way of a compromise decree. Thereafter, the appellant-father filed I.A.No.1786 of 2019 in O.P.No.123 of 2016 seeking an order to modify the said decree, by granting him the permanent custody of the minor children. The said application was disposed of by the order dated 09.03.2021 of the Family Court, Muvattupuzha, whereby the mother was directed to give the custody of the minor child, Midhilesh to the father on all second Saturdays from 11.00 a.m. to 3.00 p.m. on the ensuing Sunday. All other terms and conditions stipulated in the compromise decree were ordered to be remain in force. Challenging the said order dated 09.03.2021 in I.A.No.1786 of 2019 in O.P.No.123 of 2016, the appellant is before this Court in this appeal invoking the provisions under Section 19 (1) of the Family Courts Act, 1984 .
3.1. On 22.07.2021, when this appeal came up for admission, this Court admitted the matter on file and issued urgent notice to the respondent by speed post.
4. R.P.(FC)No.416 of 2015:- The petitioner is the respondent in M.C.No.18 of 2015, which is an application filed by the respondents herein before the Family Court, Muvattupuzha seeking maintenance, invoking the provisions under Section 125 of the Code of Criminal Procedure, 1973 , which was allowed by the order dated 03.10.2015, whereby the respondent-husband was directed to pay a monthly maintenance of Rs.4,000/- to the 1st petitioner-wife, Rs.3,000/- and Rs.1,500/- each to the 2nd and 3rd petitioners- minor children, from the date of petition. The 1st petitioner- wife was allowed to receive the maintenance amount for the 2nd and 3rd petitioners-minor children. Feeling aggrieved by the said order, the petitioner-husband is before this Court in this revision petition, invoking the provisions under Section 19 (4)
of the Family Couts Act, 1984.
4.1. On 13.11.2015, when this revision petition came up for admission, this Court admitted the matter on file and issued notice to the respondents. In Crl.M.A.No.6377 of 2015, this Court granted an interim order to keep in abeyance the execution of the impugned order, on condition that the petitioner shall deposit Rs.35,000/- before the court below, within one month and continues to deposit 80% of the maintenance ordered by the court below on or before the 5th of every month. On such deposit, the 1st respondent was granted liberty to withdraw the same.
5. By the order dated 02.11.2021 in Mat.Appeal Nos.493 of 2019 and 391 of 2021 and the order dated 09.11.2021 in R.P.(FC)No.416 of 2015, the matters were referred for mediation and both parties were directed to appear before Ernakulam Mediation Centre, in the premises of this Court, on 17.11.2021. However, the matter could be settled in mediation.
6. On 26.08.2022, when these matters came up for further cons
