High Court of Kerala
Mat. Appeal. No. 338 of 2018
Decided On, 17 September 2018
By, THE HONOURABLE MR. JUSTICE C.K. ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
For the Appellant: G. Hariharan, K.S. Smitha, T.T. Shaniba, M.V. Vipindas, H. Praveen, V.R. Sanjeev Kumar, Advocates.
For the Respondents: John Joseph(Roy), S. Sikky, T. Reshma, Advocates.
C.K. Abdul Rehim, J.
1. Can anyone of the petitioners in an application filed under Section 10A of the Divorce Act, 1869 challenge the decree, which granted dissolution of the marriage based on mutual consent, in an appeal filed under Section 19 of the Family Courts Act, 1984, is one of the questions arising for consideration. A further question also arises in the case at hand as to whether the Family Court can allow dissolution of a marriage without conducting an enquiry as contemplated in sub-section (2) of Section 10A and without insisting upon, either the presence of the parties or affidavits of the parties.
2. The appellant and the respondent jointly filed O.P.No.726/2017 before the Family Court, Irinjalakkuda seeking dissolution of their marriage based on mutual consent, under Section 10A of the Divorce Act, 1869 (hereinafter referred to as ‘the Act’ for short). The original petition was allowed through the judgment impugned herein and the marriage between the parties was dissolved, with effect from the date of the judgment. The court below granted permanent custody of the minor children to the respondent herein. It was further directed that the petitioners shall mutually comply with the conditions written in paragraphs 3 and 4 of the original petition.
3. The appellant, who is the wife, is challenging the judgment mainly on the ground that the Family Court had exceeded jurisdiction under Section 10A in granting permanent custody of the minors to the respondent and also in directing compliance of the conditions written in paragraphs 3 and 4 of the original petition. It was also contended that, the mandatory duty cast upon the court under Section 10A(2) of the Act has not been discharged legally. It is pointed out that, there is no satisfaction recorded on the essential ingredients for granting a dissolution of the marriage by mutual consent. Specific contention is that, filing of a petition based on mutual consent does not authorise the court to dissolve the marriage, but the court has to take into consideration the fact that the ‘interregnum waiting period’ is intended to give time and opportunity to the parties to reflect on their move and to seek advice from relatives and friends. During the interregnum period, one of the parties may have a second thought and a change in the mind, not to proceed with the petition. Therefore sub-section (2) mandates the court to hear the parties and that the court cannot pass a decree of divorce on mutual consent, unless it is confirmed that both the parties are still sticking on to the stand taken by them at the time of filing of the petition. The aspect of mutual consent should continue till the divorce decree is passed. That being a mandatory requirement, non-compliance of the same will nullify the decree of dissolution, is the contention. It is pointed out that, mere fact that the parties have agreed to have the marriage dissolved, does not mean that both of them are bound to stick on to it, whatever be the subsequent developments.
4. Before considering the above said contention, a larger question arises with respect to maintainability of this appeal itself. On behalf of the respondent it is pointed out that, going by sub-section (2) of Section 19 of the Family Courts Act, 1984, no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties. It is contended on behalf of the respondent that, the dissolution of marriage based on mutual consent will fall within the purview of ‘a decree or order passed with the consent of the parties’ (emphasis supplied) contemplated under sub-section (2) of Section 19. We cannot accept such a contention, because a decree of dissolution of marriage passed on mutual consent cannot be ‘a decree or order passed with the consent of the parties’. A decree dissolving the marriage under Section 10A of the Act is made based on the satisfaction of the court regarding existence of certain basic ingredients and statutory requirements. Such a decree cannot be termed as a decree passed merely on consent of the parties.
5. It is held by this court in Girija Kumari v. Vijayanandan (1995(1) KLT 521) that the waiting period of six months provided under Section 13B(2) of the Hindu Marriage Act is the transitional period during which one of the parties may have a second thought and a change in the mind not to proceed with the petition and to remain or abstain from the joint motion to be made under sub-section (2). At the time of making the petition based on mutual consent, the parties are not unaware that their petition does not by itself snap the marital tie and they know that they have to take a further step to snap the marital tie. What is significant is that, there should also be a mutual consent when they move the court under sub-section (2) with a request to pass a decree. In the absence of such a mutual consent existing at the time of the enquiry contemplated under sub-section (2), the courts get no jurisdiction to make a decree for divorce. Therefore it was held that, such a decree is not to be regarded as a decree by mutual consent.
6. The view taken in Girija Kumari’s case (supra) was seen followed by the High Court of Gujarat in Jyoti v. Darshan (2013 KHC 2932 : AIR 2013 Gujarat 218). It is held that, a decree under Section 13B of the Hindu Marriage Act is passed on the court being satisfied that certain circumstances exist and certain conditions are fulfilled. Such a decree is not a decree passed merely on consent, but on the court being satisfied with the existence of those conditions. Therefore, if an appeal is filed questioning the very satisfaction of the Family Court, the bar under Section 19(2) of the Family Courts Act would not apply, and resultantly the appeal would be maintainable. We are of the opinion that the above principle will apply equally in the case of petitions under Section 10A of the Act, because both the provisions are almost in pari materia.
7. In the case at hand, the appellant is challenging the decree, mainly based on the contention regarding failure of the court below in recording the satisfaction required under sub- Section (2) of Section 10A and also based on the lack of fulfillment of the mandatory procedural formality with respect to the second motion under sub-section (2). Therefore, based on the principle remaining settled through precedents cited above, we are of the opinion that the present appeal is not hit by subsection (2) of Section 19 of the Family Courts Act, 1984 and cannot be barred based on the finding that it is a decree passed with consent of the parties.
8. Next question arising for consideration is as to whether there was proper compliance with the statutory formalities contemplated under sub-section (2) of Section 10A. A narration on the sequence of events took place before the court below would be beneficial. The parties filed the joint application on 07.08.2017. Initially the court ordered the parties to appear on 08.02.2018. But, the hearing was advanced, presumably based on a motion made by the parties. The parties were directed to appear in the chamber of the learned Judge on the next day, ie. on 08.08.2017 at 10.30 a.m for referring them for counselling. On 08.08.2017 the parties were referred for counselling. On 22.11.2017 the parties filed I.A.No.3760/2017 seeking waiver of the statutory waiting period of six months. The said application was supported only by an affidavit sworn to by the counsel appearing for the parties. The case was thereafter adjourned for hearing on the said application to 11.12.2017, then to 30.12.2017 and then to 08.01.2018. The proceedings recorded by the court below on 08.01.2018 is that, both the petitioners are absent and the application was heard. Thereafter the matter was adjourned to 20.01.2018 and then to 09.02.2018. On 09.02.2018 both the petitioners were absent. The court below dismissed I.A.No.3760/2017 by observing that the statutory waiting period of six months is already over and therefore the said application has become infructuous. On that day itself, the court below had allowed the original petition.
9. In the impugned judgment it is mentioned that, the petitioners have filed proof affidavit in support of the petition and it was affirmed that there is no collusion or external interference in filing the application for divorce. It is further affirmed that there is no other mandatory liabilities between the parties and the permanent custody of the minor children is given to the first petitioner, who is the respondent herein. The court below observed that, there is nothing to show that the petition is the result of any fraud, undue influence or collusion and therefore the petition is allowed.
10. It is pertinent to note that nothing is mentioned in the judgment with respect to second motion of the original petition, if any made under sub-section (2); or with respect to any enquiry conducted by the court at that stage, which is a mandatory requirement under sub-section (2). Learned counsel for the appellant, Adv.Praveen Hariharan has contended that, the failure on the part of the court below to make an enquiry as contemplated under sub-section (2) will vitiate the impugned judgment. Per contra, learned counsel for the respondent contended that, the parties have filed affidavits before the court, after filing of the original petition and those affidavits can be accepted in evidence of the enquiry contemplated under subsection (2). In support of the said contention the counsel placed reliance on a Division Bench decision of this court in Saji T.Varghese v. State of Kerala (2010(3) KLT 804). While dealing with a case of dissolution of the marriage under Section 13B of the Hindu Marriage Act, this court observed that, personal presence of the applicants in a petition for dissolution of the marriage by mutual consent need not necessarily be insisted, after the period of waiting. It is stated that, after the period of waiting a second motion need only be made and personal presence of the spouses need not be insisted. The counsel can make such second motion on their behalf. Their presence need not also be insisted to tender evidence. Ordinarily, chief affidavits can be filed by them to state their case on oath, is the finding.
11. We do not think that the decision in Saji T.Varghese’s case (supra) had in any manner diluted the rigour of the mandatory duty of the court to conduct an enquiry as contemplated under sub-section (2), after expiry of the waiting period of six months. What is held in the said decision is only that, the insistence for personal presence of the parties can be dispensed with in such an enquiry, if proof affidavit is filed by both of them at the time of making the second motion. The enquiry at that stage is primarily intended for the court to ascertain whether the parties are still maintaining the same stand in pursuing dissolution of the marriage based on mutual consent, on expiry of the statutory waiting period. In the case at hand, there is nothing to indicate that any enquiry was conducted after expiry of the waiting period of six months. Nor there is any proof to show that any affidavit was filed by the parties in lieu of their personal presence, after expiry of the said period. The proof affidavits mentioned by the respondent were in fact filed as early as on 22.08.2017, after expiry of about 15 days from the date of filing of the original petition. That cannot in any manner be considered as an affidavit filed in lieu of their personal presence, at the time of the enquiry to be made at the second motion, after expiry of the waiting period.
12. Learned counsel for the respondent further contended that, filing of I.A.No.3760/2017 and production of a joint agreement signed by the parties along with the said interim application need to be taken as evidence adduced at the time of the enquiry on second motion. But we notice that the joint agreement signed by the parties was executed on 06.08.2017, on the date immediately preceding the date of filing of the original petition. That cannot be taken as evidence to show that both the parties were still intending to pursue the joint petition, after expiry of the statutory waiting period. No such presumption can be drawn on the basis of such an agreement or on the basis of the interim application filed seeking for waiver of the statutory waiting period of six months, or on the basis of any proof affidavits filed immediately after filing of the joint petition.
13. Under the above mentioned circumstances, this court finds that the impugned judgment and decree are vitiated by material irregularity due to the failure on the part of the court below in conducting a proper enquiry at the time of the second motion at the time of expiry of the statutory waiting period and in recording satisfaction based on such an enquiry conducted.
Consequently, we allow the above appeal and set aside the judgment passed by the Family Court, Irinjalakkuda in O.P.No.726/2017. The Original Petition is restored and remanded for fresh disposal by the Family Court. The said court shall dispose of the case afresh after conducting due enquiry as contemplated under sub-section (2) of Section 10A of the Act, by taking note of the observations contained hereinabove. Taking note of the fact that the original petition for dissolution of the marriage on mutual consent was filed as early as on 07.08.2017, that court shall dispose of the case on an early basis, at any rate, within a period of one month from the date of appearance of the parties on production of a certified copy of this judgment. The parties shall appear before the Family Court on 13.11.2018.