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Tomy Joseph vs Smitha Tomy on 30 October, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

TUESDAY ,THE 30TH DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940

OP (FC).No. 577 of 2018

AGAINST THE ORDER IN I.A.NO.4728 IN OP 1636/2018 of FAMILY
COURT,THRISSUR DATED 10-10-2018

PETITIONER/PETITIONER NO.1:

TOMY JOSEPH
AGED 50 YEARS
S/O.JOSEPH, NJALIYAN HOUSE, NEELESWARAM DESOM,
NEELESWARAM PO, KALADY VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT, NOW RESIDING AT FLAT NO. 16
B, SKYLANE, AXIS, PARAVATTANI DESOM, OLLUKKARA
PO, THRISSUR 680655.

BY ADV. SRI.P.B.KRISHNAN

RESPONDENT/PETITIONER NO.2:

SMITHA TOMY
D/O.XAVIOR M SEBASTIAN, NJALIYAN HOUSE,
NEELESWARAM DESOM, NEELESWARAM PO, KALADY
VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT NOW
RESIDING AT NO. 74, UMA NAGAR, KALATHODE DESOM,
OLLUKKARA PO, THRISSUR 680655.

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
23.10.2018, THE COURT ON 30.10.2018 PASSED THE FOLLOWING:
O.P.(FC) No.577/2018
2

“CR”

C.K.ABDUL REHIM

R.NARAYANA PISHARADI, JJ.
**************************
O.P.(FC) No.577 of 2018
——————————————–
Dated this the 30th day of October, 2018

JUDGMENT

R.Narayana Pisharadi, J

The petitioner is the husband and the respondent is the

wife.

2. The petitioner and the respondent jointly filed

O.P.No.1636/2018 in the Family Court, Thrissur under Section

10A of the Divorce Act, 1869 for granting a decree of divorce on

the basis of mutual consent. The petitioner filed an application

as I.A.No.4728/2018 for waiving the ‘cooling period’ of six

months. As per Ext.P4 order, the Family Court dismissed the

aforesaid application. Ext.P4 order is under challenge in this

Original Petition filed under Article 227 of the Constitution of
O.P.(FC) No.577/2018
3

India.

3. We have heard learned counsel for the petitioner and

also the respondent.

4. The petitioner and the respondent are Christians.

Their marriage was solemnised on 29.12.1999 in a church as per

religious ceremonies. They are living separately from 09.01.2016

onwards. On 10.09.2018, they jointly filed O.P.No.1636/2018 in

the Family Court under Section 10A of the Divorce Act, 1869.

The application I.A.No.4728/2018 was filed by the petitioner on

27.09.2018 for waiving the cooling period of six months.

5. Ext.P4 order passed by the Family Court, dismissing

the application I.A.No.4728/2018 filed by the petitioner, reads as

follows:

“The petition is to waive 6 months period for
making second move for divorce under Section 10A
of Divorce Act. As per Section 10A(2), the second
motion cannot be made before 6 months of the first
motion. There is no provision in the Divorce Act to
waive 6 months period also. No decision under
Section 10A of the Divorce Act brought to my notice
permitting waiver of 6 months period. Hence, the
O.P.(FC) No.577/2018
4

petition cannot be allowed.

In the result, the petition is dismissed.”

6. In Amardeep Singh v. Harveen Kaur : AIR 2017

SC 4417, the Hon’ble Supreme Court considered the question

whether the minimum period of six months stipulated under

Section 13B(2) of the Hindu Marriage Act, 1955 for a motion for

passing decree of divorce on the basis of mutual consent is

mandatory or directory and whether such period can be relaxed

in exceptional situations. The object of the provision contained in

Section 13B of the Hindu Marriage Act, 1955 was considered by

the Apex Court and it was held as follows:

“The object of the provision is to enable the
parties to dissolve a marriage by consent if the
marriage has irretrievably broken down and to enable
them to rehabilitate them as per available options. The
amendment was inspired by the thought that forcible
perpetuation of status of matrimony between unwilling
partners did not serve any purpose. The object of the
cooling off the period was to safeguard against a
hurried decision if there was otherwise possibility of
differences being reconciled. The object was not to
perpetuate a purposeless marriage or to prolong the
O.P.(FC) No.577/2018
5

agony of the parties when there was no chance of
reconciliation. Though every effort has to be made to
save a marriage, if there are no chances of reunion and
there are chances of fresh rehabilitation, the Court
should not be powerless in enabling the parties to have
a better option.”

7. In Amardeep Singh (supra), after analysing the

provision contained in Section 13B(2) of the Hindu Marriage Act,

1955, the Hon’ble Supreme Court further held as follows:

“18. Applying the above to the present situation, we
are of the view that where the Court dealing with a matter
is satisfied that a case is made out to waive the statutory
period under Section 13-B(2), it can do so after
considering the following:

i) the statutory period of six months
specified in Section 13-B(2), in addition to the
statutory period of one year under Section 13-B(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 re-unite 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
O.P.(FC) No.577/2018
6

differences including alimony, custody of child or
any other pending issues between the parties;

iv) the waiting period will only prolong
their agony.

19. The waiver application can be filed one week after
the first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of
the waiting period for the second motion will be in the
discretion of the concerned Court.

21. Since we are of the view that the period mentioned
in Section 13-B(2) is not mandatory but directory, it will
be open to the Court to exercise its discretion in the facts
and circumstances of each case where there is no
possibility of parties resuming cohabitation and there are
chances of alternative rehabilitation.”

8. We do not think that the learned Judge of the Family

Court was not aware of the decision of the Apex Court in

Amardeep Singh (supra). It appears from the impugned order

that the learned Judge of the Family Court was under the

impression that the decision in Amardeep Singh (supra) is

applicable only to a petition for divorce filed under Section 13B of

the Hindu Marriage Act, 1955 and that it is not applicable to a

petition for divorce filed under Section 10A of the Divorce Act,
O.P.(FC) No.577/2018
7

1869.

9. At this juncture, we find it advantageous to extract

here the provisions contained in Section 13B of the Hindu

Marriage Act, 1955 and Section 10A of the Divorce Act, 1869.

Section 13B(2) of the Hindu Marriage Act, 1955 reads as follows:

“13B Divorce by mutual consent.- (1) Subject
to the provisions of this Act a petition for dissolution of
marriage by a decree of divorce may be presented to
the District Court by both the parties to a marriage
together, whether such marriage was solemnised
before or after the commencement of the Marriage
Laws (Amendment) Act, 1976, on the ground that they
have been living separately for a period of one year or
more, that they have not been able to live together and
that they have mutually agreed that the marriage
should be dissolved.

(2) On the motion of both the parties made not
earlier than six months after the date of the
presentation of the petition referred to in sub-

section(1) and not later than eighteen months after the
said date, if the petition is not withdrawn in the
meantime, the Court shall, on being satisfied, after
hearing the parties and after making such inquiry as it
thinks fit, that a marriage has been solelmnized and
that the averments in the petition are true, pass a
O.P.(FC) No.577/2018
8

decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree.”

10. Section 10A of the Divorce Act, 1869 reads as follows:

“10A. Dissolution of marriage by mutual consent.-
(1) Subject to the provisions of this Act and the rules
made thereunder, a petition for dissolution of marriage
may be presented to the District Court by both the
parties to a marriage together, whether such marriage
was solemnized before or after the commencement of
the Indian Divorce (Amendment) Act, 2001, on the
ground that they have been living separately for a
period of two years or more, that they have not been
able to live together and thy have mutually agreed that
the marriage should be dissolved.

(2) On the motion of both the parties made not
earlier than six months after the date of presentation of
the petition referred to in sub-section (1) and not later
than eighteen months after the said date, if the petition
is not withdrawn by both the parties in the meantime,
the Court shall, on being satisfied, after hearing the
parties and making such inquiry, as it thinks fit, that a
marriage has been solemnized and that the averments
in the petition are true, pass a decree declaring the
marriage to be dissolved with effect from the date of
decree.”

11. A close scrutiny of the aforesaid two provisions would
O.P.(FC) No.577/2018
9

show that they are almost in pari materia except with regard to

the period during which the spouses shall be living separately.

Under Section 13B of the Hindu Marriage Act, 1955, a petition

under that provision can be made only if the spouses have been

living separately for a period of one year or more. Under Section

10A of the Divorce Act, 1869, a petition under that provision can

be made only if the spouses have been living separately for a

period of two years or more. In all other aspects, the aforesaid

two provisions are almost identical. Therefore, we are of the

considered opinion that the dictum laid down by the Hon’ble

Supreme Court in Amardeep Singh (supra) would be applicable

in case of a petition filed under Section 10A of the Divorce Act,

1869, also.

12. 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, 1955 and
O.P.(FC) No.577/2018
10

Section 28(1) of the Special Marriage Act, 1954, a period of two

years of separate residence is provided under Section 10A(1) of

the Divorce Act, 1869. 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, 1955 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, we are of the considered

opinion that the dictum laid down by the Apex Court in

Amardeep Singh (supra) is applicable to a petition for divorce

filed under Section 10A of the Divorce Act, 1869 and on

satisfaction of the conditions laid down in that decision, the

Family Court can waive the period of six months stipulated under
O.P.(FC) No.577/2018
11

Section 10A(2) of that Act.

13. The view taken by us that, divorce by mutual consent is

a secular concept and there can be no discrimination on the

ground of religion against persons who want divorce by mutual

consent, is fortified by the decision of a Division Bench of this

Court in Saumya Ann Thomas v. The Union of India: 2010

(1) KLT 869 wherein it has been held that the period of ‘two

years’ stipulated in Section 10A(1) of the Divorce Act, 1869,

being violative of Articles 14 and 21 of the Constitution of India,

must be read down as a period of ‘one year’.

14. In the instant case, the marriage between the parties

was on 29.12.1999. It is stated that they have been living

separately from 09.01.2016 onwards. The petition for divorce

under Section 10A of the Divorce Act was filed on 27.09.2018.

More than a period of two years and six months from the date

09.01.2016 was over at that time.

15. In the aforesaid circumstances, Ext.P4 order passed

by the Family Court cannot be sustained in law and it is liable to

be set aside. It necessarily follows that the Family Court has to
O.P.(FC) No.577/2018
12

consider afresh the application I.A.No.4728/2018 filed by the

petitioner and pass appropriate orders thereon.

16. Consequently, we allow the Original Petition and set

aside Ext.P4 order passed by the Family Court, Thrissur in

I.A.No.4728/2018 in O.P.No.1636/2018 and remand the

aforesaid application for fresh disposal in accordance with law, in

the light of the observations made in this judgment. The Family

Court shall dispose of the aforesaid application within a period of

two weeks from the date of production of a certified copy of this

judgment before that court by either party.

(sd/-)

C.K.ABDUL REHIM, JUDGE

(sd/-)

R.NARAYANA PISHARADI, JUDGE
jsr/26/10/2018
O.P.(FC) No.577/2018
13

APPENDIX
PETITIONER’S EXHIBITS:

EXHIBIT P1 TRUE COPY OF O.P.NO.1636 OF 2018 ON THE
FILE OF THE FAMILY COURT, THRISSUR,
DATED 10.9.2018.

EXHIBIT P2 TRUE COPY OF I.A.NO.4728 OF 2018 IN
O.P.NO.1636 OF 2018 ON THE FILE OF THE
FAMILY COURT, THRISSUR, DATED 27.9.2018.

EXHIBIT P3 TRUE COPY OF THE LIST OF DOCUMENTSS
DATED 27.9.2018 AND THE DOCUMENTS
PRODUCED BY THE PETITIONER

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 10.10.2018
IN IA NO.4728 OF 2018 IN O.P.NO.1636 OF
2018 ON THE FILE OF THE FAMILY COURT,
THRISSUR.

RESPONDENT’S
EXHIBITS :

NIL
TRUE COPY

PS TO JUDGE

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