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2022 Supreme(Online)(KER) 2534
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
UNNIKRISHNAN ELAYATH C.N – Appellant
Versus
VINEETHA C.M – Respondent
Mat.Appeal 391 2021
K.J.MANU RAJ, K.VINAYA RAVI KRISHNAN, SRI.S.JIJI, SRI.A.R.ANI, M.M.BABY
The waiver of the six-month waiting period for mutual consent divorce is at the court's discretion when parties demonstrate genuine settlement of disputes.
Headnote:
Divorce - Hindu Marriage Act - Sections 13B(2), 19(1) - The court interpreted the discretionary nature of the waiver period for mutual consent divorce under Section 13B of the Act, allowing the divorce without the mandatory waiting period due to prior resolution of disputes.
Fact of the Case:
The appellant sought divorce citing desertion, and later both parties entered mediation and agreed on terms for mutual consent divorce, including financial settlements and child custody arrangements.
Finding of the Court:
The court found that the parties had genuinely settled their disputes, living separately for years, and therefore allowed the divorce without the statutory waiting period.
Issues: Whether the court could waive the statutory waiting period for divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act.
Ratio Decidendi: The court upheld the discretion in waiving the six-month waiting period where the parties had settled disputes and no reconciliation was likely, aligning with the precedent set in a relevant Supreme Court case.
Final Decision: The court granted a decree of divorce by mutual consent, dissolving the marriage.
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 consi
