Back
2022 Supreme(Online)(KER) 29360
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
SARATH GOPAL, – Appellant
Versus
ANJALI.D., – Respondent
Mat.Appeal 379 2021
AMRIN FATHIMA, ARAVIND AJITH, STEFIN THOMAS, P.M.MOHAMMED SHIRAZ
The court confirmed that the waiting period for divorce by mutual consent under the Special Marriage Act can be waived if the parties have genuinely resolved their disputes.
Headnote:
Divorce - Mutual Consent - Special Marriage Act - Sections 27, 28, 19(1) Family Courts Act - The court acknowledged the importance of mediation, validated the parties' mutual consent for divorce, and applied discretion to waive the mandatory cooling-off period based on established Supreme Court precedence.
Fact of the Case:
The appellant sought a divorce from the respondent under the Special Marriage Act after the Family Court dismissed their previous petition. Both parties settled their disputes through mediation and filed for divorce by mutual consent, seeking to waive the statutory six-month waiting period.
Finding of the Court:
The court found that both parties had genuinely settled their differences and had been living separately since December 2015, determining that the waiting period would unnecessarily prolong their suffering. It ultimately allowed the waiver of the cooling-off period.
Issues: Whether the court can waive the statutory six-month period for divorce by mutual consent under the Special Marriage Act, based on the parties' settled terms during mediation.
Ratio Decidendi: The Supreme Court's ruling in Amardeep Singh v. Harveen Kaur indicates that the mandatory waiting period for divorce can be waived at the court's discretion, contingent upon the satisfaction of specific conditions.
Final Decision: The appeal is disposed of by granting a decree of divorce by mutual consent, waiving the statutory waiting period.
Anil K. Narendran, J.
The appellant is the petitioner in O.P.No.1850 of 2016 on the file of the Family Court, Thiruvananthapuram, which is one filed against the respondent herein-wife seeking a decree of dissolution of marriage under Section 27 (1)(d)(e) of the Special Marriage Act . That original petition ended in dismissal by the judgment and decree dated 29.03.2021. 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 19.07.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post.
3. During the pendency of this appeal, both parties were referred for mediation before the Ernakulam Mediation Centre in the premises of this Court by the order dated 18.10.2022.
4. The parties have settled the disputes in mediation, and they have entered into a mediation settlement agreement dated 16.12.2022, which is placed on record along with the report dated 16.12.2022 of the Mediator.
5. Since the parties have contracted the marriage under the provisions of the Special Marriage Act , a petition under Section 28 of the , seeking a decree of divorce by mutual consent is filed as I.A.No.2 of 2022, in terms of the settlement. The said application is supported by I.A.No.3 of 2022, seeking an order to waive the statutory period of six months. In the affidavit filed in support of the said application it is stated that after the marriage solemnised on 22.08.2015, they started living separately from December 2015 onwards.
6. The Apex Court inAmardeep Singh v. Harveen Kaur [ 2017 (8) SCC 746 ] considered whether it is mandatory in all cases to wait for the statutory period under Section 13B(2) of the Act before allowing divorce on mutual consent. It was held that the provision was discretionary and not mandatory. The Apex Court held that the period can be waived if the Court is satisfied after considering the following:
'i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
iv) the waiting period will only prolong their agony.'
7. In Tomy Joseph v. Smitha Tomy [2018 (5) KHC 267] a Division Bench of this Court noticied that the provisions contained in Section 10A of the Divorce Act, 1869, are, in substance, a verbatim reproduction of the provisions contained in Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act , 1954. The only substantial difference is that, instead of the period of one year mentioned in Section 13B(1) of the Hindu Marriage Act and (1) of the , a period of two years of separate residence is provided under Section 10A(1) of the Divorce Act. The beneficiaries under the abovementioned provisions of different statutes are persons who want divorce by mutual consent and who file joint petition for that relief. There can be no discrimination among them on the ground of religion. Divorce by mutual consent is a secular concept. When the Apex Court has declared the law that the ‘cooling off period’ of six months provided under Section 13B(2) of the Hindu Marriage Act is not mandatory but directory and such period can be allowed to be waived by the Court on satisfaction of certain conditions, denying that benefit to persons who are governed by the Divorce Act, 1869 would amount to unjust discrimination. Therefore, the Division Bench held that the dictum laid down by the
