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HIGH COURT OF KERALA
N. NAGARESH, SOPHY THOMAS, JJ
MANOJ.A.M – Appellant
Versus
Mithra Chandran – Respondent
RP 483/2024
Custody - Divorce - Sections 13B, 26 Hindu Marriage Act - The court set aside an ex-parte custody decree, directed the parties to settle their disputes amicably, and ordered the Family Courts to pass decrees in accordance with the parties' compromise on custody and divorce by mutual consent.
Fact of the Case:
The petitioner, the father of two minor children, had obtained an ex-parte decree for permanent custody of the children. The respondent wife filed a petition seeking summer vacation custody, which was granted. The petitioner filed a review petition against the order granting summer vacation custody to the wife.
Finding of the Court:
The parties amicably settled their disputes, including custody, visitation, and maintenance of the children. They filed a compromise petition and a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act. The court set aside the ex-parte custody decree and directed the Family Courts to record the compromise and pass decrees accordingly.
Issues: 1) Whether the ex-parte custody decree should be set aside and the matter remanded to the Family Court. 2) Whether the parties' compromise on custody, visitation, and divorce should be recorded and given effect.
Ratio Decidendi: The court has the power under Section 26 of the Hindu Marriage Act to make orders regarding the custody, maintenance, and education of the children. The parties' amicable settlement of their disputes, including custody and divorce, should be given effect to.
Final Decision: The ex-parte custody decree is set aside, and the Family Courts are directed to record the parties' compromise and pass decrees accordingly.
Sophy Thomas, J.
This review petition is at the instance of the petitioner in OP(FC) No.201/2023 and the respondent is his wife.
2.The petitioner is the father of two minor children Vismaya and Thanmaya. He filed OP(G&W) No.38/2020 before the Family Court, Pathanamthitta against his wife and obtained an ex-parte decree for permanent custody of the children and accordingly the children were taken custody by him. As per order dated 05.05.2023 in OP(FC) No.201/2023 filed by the wife, Summer Vacation custody of the children was given to her from 15.05.2023 to 29.05.2023, and the OP(FC) was disposed of with a direction to the Family Court, Pathanamthitta to decide OP(G&W) No.38/2020 on merits and against that direction he has preferred this review petition.
3.Pending the review petition, the parties amicably settled their disputes and filed a compromise petition as IA No.4/2024 stating that all the matrimonial disputes including custody, visitation, etc. of the children were settled and the terms of settlement are incorporated in OP( HMA ) No.258/2024 filed by them under Section 13B of the Hindu Marriage Act for divorce on mutual consent. The compromise is recorded. Accordingly, the ex-parte decree in OP(G&W) No.38/2020 on the file of Family Court, Pathanamthitta is set aside and the Family Court is directed to restore that case back to file.
4.Learned counsel for the petitioner and respondent would submit that since all the disputes regarding custody, visitation, maintenance, etc. of the children stand settled, a decree has to be passed in OP(G&W) No.38/2020, in terms of the settlement. So, they will be filing a separate compromise petition in OP(G&W) No.38/2020, incorporating the terms of settlement. In that event, the Family Court, Pathanamthitta shall record the compromise and decree that original petition in terms of the compromise, within two weeks, from the date of filing of the compromise petition.
5.The learned counsel for the petitioner and respondent submitted that while settling all the pending disputes, the parties arrived at a consensus for divorce on mutual consent and accordingly they filed OP( HMA ) No.258/2024 under Section 13B of the Hindu Marriage Act before the Family Court, Adoor.
6.Today, the parties and their respective counsel appeared before us. The parties expressed their intention to dissolve their marriage on mutual consent and both of them asserted that there is no chance for a reunion. So, there shall be a direction to the Family Court, Adoor to take up OP( HMA ) No.258/2024 out of turn, and to pass a decree for dissolution of marriage, based on their affidavits, waiving the statutory period. Since the parties personally appeared before us and expressed their intention for divorce in unequivocal terms, their further appearance shall not be insisted by the Family Court. The Family Court, Adoor is directed to pass a decree in OP( ) No.258/2024 within a period of two weeks from the date of filing their affidavits before that court.
7.Learned counsel for the respondent/wife submitted that her Project Report in original was produced by the petitioner/husband before the Family Court, Pathanamthitta in OP(G&W) No.38/2020. Since she is in need of the same, it has to be returned to her or her counsel. The petitioner/husband has no objection in returning that document to the respondent or her counsel. So, the Family Court, Pathanamthitta is directed to return the original of the Project Report produced by the petitioner before that court in OP(G&W) No.38/2020 to the respondent/wife or her counsel on an application filed on her behalf. Since the husband has reported no objection, copy of that application need not be insisted on him, and the application shall be disposed of within a period of two weeks from the date of its filing.
8.with these directions, the review petition is disposed of. registry is directed to forward a copy of this order to the family court, pathanamthitta as well as family court, adoor fo
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