Divorce applications under the Hindu Marriage Act must be filed in Family Courts, and supervisory powers under Article 227 do not allow for decrees of divorce.

JUDGMENT

Anil K. Narendran, J.

The petitioner is the respondent in O.P.No.71 of 2020 on the file of the Family Court, Kasaragod, which is one filed by the respondent herein-husband, seeking a declaration that the marriage solemnized between the parties on 25.08.2019 is null and void. The petitioner has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India , seeking an order to set aside Ext.P12 order dated 22.06.2022 of the Family Court in O.P.No.71 of 2020, whereby the preliminary issue raised on the maintainability of that original petition was found against the petitioner. The petitioner has also sought for a declaration that Ext.P1 original petition is not maintainable before the Family Court.

2. On 25.07.2022, when this original petition came up for admission, this Court issued notice before admission to the respondent by speed post. Simultaneously, the petitioner was permitted to serve notice on the respondent through his counsel before the Family Court, Kasaragod. This Court granted an interim order staying all further proceedings pursuant to Ext.P12, pending disposal of this original petition. The said interim order, which was extended from time to time, is still in force.

3. During the pendency of this original petition, the parties were referred for mediation. They have settled the disputes in mediation and the memorandum of agreement dated 03.01.2023 executed between the parties is placed on record along with the report dated 03.01.2023 of the Mediator. In terms of the terms and conditions contained in the memorandum of agreement dated 03.01.2023, I.A.Nos.1 and 2 of 2023 have been filed in this original petition. I.A.No.2 of 2023 is a joint petition filed under Section 13B of the Hindu Marriage Act, 1955 seeking a decree of divorce on mutual consent, and I.A.No.1 of 2023 is one filed invoking the provisions under (2) of the Act, to waive the statutory period of six months.

4. On 16.01.2023, when this original petition came up for consideration, both parties were personally present in Court. We have interacted with the parties. By the order dated 16.01.2023, this original petition was ordered to be listed today, for the learned counsel on both sides to address arguments on the maintainability of those interlocutory applications in an original petition filed under Article 227 of the Constitution of India . On 16.01.2023, it was pointed out before this Court that, O.P.No.71 of 2020 filed by the respondent herein before the Family Court, Kasaragod has already been dismissed as withdrawn, based on the mediation agreement.

5. Heard the learned counsel for the petitioner and also the learned counsel for the respondent.

6. As already noticed hereinbefore, this original petition is one filed invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India . An application for divorce on mutual consent, invoking the provision under Section 13B of the Hindu Marriage Act, can be entertained before the Family Court having territorial jurisdiction or in an appeal pending before this Court, under Section 19 (1) of the Family Courts Act, 1984 arising out of the judgment and decree of the Family Court. Such an application cannot be entertained in an original petition filed before this Court under of the , since no decree of divorce can be passed in such an original petition, in exercise of the supervisory jurisdiction.

7. The learned counsel for the petitioner and also the learned counsel for the respondent would submit that parties shall file a joint petition, invoking the provisions under Section 13B of the Hindu Marriage Act, before the Family Court, Kasaragod, along with an application under (2) of the said Act to waive the statutory period of six months, since both parties are residing separately from December, 2019 onwards.

8. In such circumstances, this original petition is disposed of in terms of the terms an