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A.Rathanavelpandian vs K.Deepshikha … Petitioner/ on 28 February, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 28.02.2018

CORAM

THE HON’BLE DR.JUSTICE S.VIMALA
and
THE HON’BLE MRS.JUSTICE T.KRISHNAVALLI

Civil Miscellaneous Appeal No.122 of 2018

A.Rathanavelpandian … Petitioner/ Appellant

-vs-

K.Deepshikha … Petitioner/Respondent

Prayer: Civil Miscellaneous Appeal is filed under Section 19 of the Famil
Court Act to set aside the portion ?the decree shall have an effect only on
02.08.2018? in the judgment and decree passed on 29.01.2018 in HMOP
No.66/2017 on the file of the Family Court, Srivilliputhur and allow the
Civil Miscellaneous Appeal.

!For Appellant : Mr.T.Balaji
^For Respondent:

:JUDGMENT

(Judgment of the Court was delivered by S.Vimala,J.,)

The judgment and decree passed by the Family Court, Srivilliputhur in
HMOP No.66/2017 dated 29.01.2018, granting a decree for divorce under Section
13(B) of the Hindu Marriage Act (hereinafter referred to as ‘the Act’), but
postponing the effect of decree of divorce until 02.08.2018 is under
challenge in this Civil Miscellaneous Appeal.

2. The facts in brief:

The first petitioner in the divorce petition is the wife and the 2nd
petitioner/appellant herein is the 2nd petitioner therein. The marriage
between the couple took place on 01.02.2017. The marriage was sought to be
dissolved. The application has been presented jointly by both of them as per
the requirement of law. Before the matter was taken up for hearing, an
application under Section 14 of the Act seeking permission to present the
petition within a period of one year has been filed in I.A.No.109/2017 in
HMOP No.66/2017.

3. The affidavit filed in support of the application is the joint
affidavit of both the appellant and the respondent herein. In the application
itself, it is made clear that there is no iota or probability for reunion or
restitution.

4. The reason stated in the application filed under Section 14 of the
Act is that the wife, who is a Ph.D., scholar, intends to settle her life
abroad at the earliest. The circumstances, under which, the wife is placed is
sought to be construed as causing exceptional hardship and therefore, leave
must be granted by allowing the said application. The Court by the order
dated 21.06.2017 has allowed the application dispensing with the waiting
period of one year time. Thereafter, the petition for divorce has been taken
on file on 21.06.2017 and it had been posted for hearing after the expiry of
the cooling period of six months, as mandated under Section 13(B)(2) of the
Act.

5. The enquiry for the second time was posted to 05.02.2018. By filing
an application in IA No.209/2017, the couple wanted earlier hearing and it
was allowed preponing the enquiry from 05.02.2018 to 27.12.2017. The Court
granted the decree for divorce by the detailed judgment dated 29.01.2018.
While granting the decree, as the saying goes, operation success, but patient
died, the Family Court directed that the decree granting divorce shall have
the effect only after 02.08.2018, though the decree dated 29.01.2018.

6. The learned counsel for the appellant would submit that,

(a) when the couple wanted divorce by mutual consent at the earliest by
seeking to dispense with the waiting period of one year (under Section 14 of
the Act), the couple were able to convince the Court and they were successful
in getting the application allowed ;

(b) Even thereafter, the couple did not seek permission to dispense
with the cooling period of six months, as contemplated under 13(B)(2) of the
Act. Therefore, there is no justification for the Court to postpone the
effect of the decree till 02.08.2018.

The learned counsel would submit that on both these grounds, the clause in
the decree postponing the effect of decree is liable to be set aside.

7. We have considered the submissions made by the learned counsel for
the appellant.

8. Under normal circumstances, we would have chosen to issue notice to
the respondent. But, here is a case, where nobody would have been inclined to
challenge the decree of divorce by mutual consent except for the postponement
of the effect of decree. In fact, when the wife herself has alleged before
the Court that she is very much interested in getting the order of divorce at
the earliest point of time, there is no purpose in ordering notice to the
wife. Moreover, the issue to be decided more is on a question of law.

9. The perusal of the entire materials on record would go to show that
when the application under Section 14(1) of the Act has been allowed and the
decree for divorce having been granted after the expiry of six months period,
the effect of postponing the decree beyond 02.08.2018 is clearly illegal and
it is unwarranted and therefore, the clause postponing the decree has to be
set aside.

10. While imposing the condition that the decree shall have an effect
only after 02.08.2018, the Family Court has quoted the provisions of Section
14 of the Act. With regard to Section 14 of the Act, the observation of the
trial Court judgment is as under:

?The section 14 of the Hindu Marriage Act empowers the Court to
dissolve the marriage before the completion of the statutory conditions. It
further empowers the Court to pronounce a decree subject to condition that
the decree shall have an effect after the expiry of eighteen months from
01.02.2017. So, it is proper for the Court to dissolve the marriage by
pronouncing a decree with condition that the decree for the relief of divorce
on mutual consent shall not have effect on or before 2.8.2018 and the issue
No.2 is answered accordingly.?

11. This observation compels us to go through the provisions of Section
14 of the Act, under which, only when a permission is obtained either by
misrepresentation or by concealment of the nature of the case, the benefit
granted under Section 14 of the Act would not be made available. By any
stretch of imagination, it cannot be said that the application under Section
14/13(B) of the Act was filed by misrepresentation or concealment of the
nature of the case. Everything has been made crystal clear and nothing has
been suppressed. Under such circumstances, the effect of postponing the
decree invoking the assistance of Section 14 of the Act is clearly
unsustainable. Therefore, it cannot be allowed to stand on record and it is
ordered to be expunged.

12. In the result, in Paragraph No.10, the starting phrase ?Section 14
of the Hindu Marriage Act …..? ending with ?issue No.2 is answered
accordingly? is ordered to be deleted, apart from the clause in Paragraph
No.11, which states that ?The decree shall have an effect only after
02.08.2018.?

13. This Civil Miscellaneous Appeal is allowed to the extent indicated
above. No costs.

To:

The Family Court,
Srivilliputhur

.

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