IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940
OP (FC).No. 138 of 2019
AGAINST THE ORDER DATED 21.02.2019 IN I.A.No.219/2019 IN OP(DIV)
36/2019 of FAMILY COURT, MAVELIKKARA
PETITIONERS:
1 VINU JACOB
AGED 37 YEARS
S/O.JACOB GEORGE, PUTHENVEETTIL KOIKKALETH, MANAKKAD,
MAVELIKKARA P.O.
2 REMI SOSA KOSHI
AGED 31 YEARS
D/O.M.J.KOSHI, MELEPPURATHU MOLY VILLA, THAZHAKKARA
P.O., THAZHAKKARA VILLAGE, MAVELIKKARA.
BY ADVS.
SRI.B.PRAMOD
SMT.R.REJI (ATTINGAL)
RESPONDENT/S:
NIL
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 01.03.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
O.P.(FC) No.138 of 2019. 2
C:R:
C.K.ABDUL REHIM
T.V.ANILKUMAR, JJ.
———————————
O.P.(FC) No.138 of 2019
———————————-
Dated this the 1st day of March, 2019
JUDGMENT
C.K.ABDUL REHIM, J.
Petitioners herein have filed O.P.36/2019 before the Family
Court, Mavelikkara 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 said application
was filed before the court below on 11.1.2019. The court below
adjourned the matter to 19.4.2019 directing appearance of both the
petitioners for undergoing mediation. The petitioners thereupon filed
I.A.219/2019 seeking waiver of the statutory waiting period and for an
early consideration of the joint application for dissolution of the
marriage. The said interim application was dismissed by the Family
Court on 21.2.2019 through Ext.P6 order, which is under challenge in
this Original Petition filed invoking the supervisory jurisdiction vested
O.P.(FC) No.138 of 2019. 3
on this court under Article 227 of the Constitution of India.
2. The reasons for dismissal of the application, mentioned in
the order impugned, is that the conditions enumerated in the ruling of
the Hon’ble Supreme Court in Amardeep Singh V. Harveen Kaur
[(2017) 8 SCC 746] are not made out.
3. Facts pleaded in O.P. No.36/2019 as well as in the affidavit
filed in support of I.A.219/2019 are that, marriage between the
petitioners was on 18.5.2009 and a child was born out of their
wedlock, on 10.4.2011. Since 15.4.2016 they are living separated
due to matrimonial discord. In the affidavit in I.A.219/2019 it is
specifically stated that the marital relationship remains irretrievably
broken and there is no scope of any reunion. It is also mentioned
that, even after completion of the waiting period, there is absolutely
no chance of the spouses to have any rethinking and the waiting
period (cooling -off period) will only add more agony of the parties.
4. Section 10A(i) of the Act insists that, an application for
dissolution of marriage by mutual consent can be filed only if the
spouses have been living separated for a period of two years.
Subsection (2) of Section 10A provides that the application can be
considered on motion made by the parties, not earlier than six
O.P.(FC) No.138 of 2019. 4
months after the date of presentation of the petition. A Division Bench
of this Court in Soumya Ann Thomas Vs. Union of India [(2010)
(1) KLT 869] declared that, the stipulation contained in Section
10A(i) that the parties should have been living separated for a period
of two years is unconstitutional as it violates the fundamental rights to
equality and the right of life under Article 14 and 21 of the
Constitution. It was held therein that, the word ‘two years’ contained
in the said provision shall be read down as ‘one year’. The above
decision was rendered based on the finding that the provision will
work out to be discriminatory, when compared with the identical
provision contained in the Hindu Marriage Act 1955. In the said
decision it was also held that, no courts other than the Hon’ble
Supreme Court invoking powers under Article 142 of the Constitution
can dispense with the mandatory period of six months specified
under Section 10A (2).
5. In the decision Amardeep Singh (supra), while dealing
with the identical provision contained in Section 13 B (2) of the Hindu
Marriage Act, 1955 it was held that, the provision insisting the waiting
period is only directory and not mandatory. It was held that, the
court concerned dealing with the matter will be at liberty to waive the
O.P.(FC) No.138 of 2019. 5
cooling-off period, not just the Hon’ble Supreme Court under Article
142 of the Constitution. In Amardeep Singh (supra) the Supreme
Court had enumerated the conditions under which the courts dealing
with the matter can be satisfied whether a case is made out for
waiver of the statutory period. Those conditions contained in
paragraph 19 of the decision are quoted below;
(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(I) of separation of
parties is already over before the first motion itself;
(ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A
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.
6. Recently, a Division Bench of this Court to which one among
us (Justice C.K.Abdul Rehim) is a party, in Tomy Joseph V. Smitha
Tomy (2018 (4) KLT 770) held that, a close scrutiny of Section 10A
of the Divorce Act 1869 and Section 13 B of the Hindu Marriage Act
1955 would show that both the provisions are in pari materia and
O.P.(FC) No.138 of 2019. 6
that the law laid down in Amardeep Singh (supra) would be
applicable in the case of a petition filed under Section 10A of the
Divorce Act, also.
7. In view of the legal position remaining settled as above, the
court below ought to have considered the interim application on the
question as to whether the conditions mentioned in Amardeep Singh
(supra) remains satisfied or not. Of course, one among the
conditions with respect to efforts for mediation/conciliation is yet to
be completed, as evidenced from the order impugned. But if the court
below could arrive at satisfaction of other three conditions, the court
ought to have expediated the matter and completed the process of
mediation/conciliation, without insisting upon the cooling-off period to
run. From the facts of the case it is evident that the parties are living
separated since 15.4.2016. Hence it is clear that the period of one
year and the statutory period of six months remains already
completed even at the time of first motion of the original petition. As
revealed from Ext.P2, the parties have genuinely settled their
differences and made provisions with respect to payment of alimony,
properties etc. and with respect to custody of the child. It is also
mentioned in the affidavit that the waiting period will only prolong their
O.P.(FC) No.138 of 2019. 7
agony. In such circumstances, the observations made in the
impugned order that the conditions in Amardeep Singh (supra)
remains not satisfied, is factually incorrect. It is also factually an
incorrect observation that the child was born on 10.4.2017. The date
of birth of the child is 10.4.2011 as mentioned in the original petition.
It is stated therein that the child is now aged 8 years. Therefore we
find that the reasons stated by the learned judge while rejecting the
application seeking waiver of the cooling-off period, cannot be
sustained.
8. Since it is already held by the Hon’ble Supreme Court in
Amardeep Singh (supra) that the provision insisting the waiting
period (cooling-off period) stipulated in the statute is not mandatory
and only directory. We are of the considered opinion that the courts
dealing with cases for dissolution of marriage based on mutual
consent are bound to take a liberal attitude in waiving off such
stipulation. When it is convinced to the court that the marital tie has
been broken irretrievably and that there is only nil chances of
rethinking and reunion of the spouses; and when the conditions
enumerated in the ruling in Amardeep Singh (supra) stands
satisfied, there is absolutely no justification for compelling the parties
O.P.(FC) No.138 of 2019. 8
to wait further, in a manner prolonging their agony.
9. Sanctity and solemnity of marital relationships and the beauty
and charm of the ‘institution of family’ would be survived only when
there is cordial marital relationship and cohabitation between the
spouses. When there is an irretrievable break down, the social stigma
attached on to the spouses, who are living separated due to such
irretrievable break down of the matrimony, will be lessened or
removed only when their separation is legalised into a valid
dissolution of the marital tie. In this context it is pertinent to take note
the recent trends in the development of the case law in the country. In
the decision of the Hon’ble Supreme Court In Nandakumar and
another Vs. State of Kerala and others (AIR 2018 SC 2254) it is
held that, even in a case where the parties are not competent to enter
into wedlock, they have right to live together even outside the
wedlock. It is found that ‘live-in-relationship’ is now recognized by the
legislature itself, which has found its place under provisions of the
Protection of Women from Domestic Violence Act, 2005. So also, in
Shafin Jahan Vs. Asokan (2018(2) KLT 571 (SC), speaking for the
three Judges Bench in the Supreme Court, the Hon’ble Chief Justice,
Mr.Justice Dipak Misra observed that ;
O.P.(FC) No.138 of 2019. 9
“It is obligatory to state here that expression of choice in accord with law
is acceptance of individual identity. Curtailment of that expression and the
ultimate action emanating therefrom on the conceptual structuralism of
obeisance to the societal will destroy the individualistic entity of a person.
The social values and morals have their space but they are not above the
constitutionally guaranteed freedom. The said freedom is both a
constitutional and a human right. Deprivation of that freedom which is
ingrained in choice on the plea of faith is impermissible. Faith of a person
is intrinsic to his/her meaningful existence. To have the freedom of faith is
essential to his/her autonomy; and it strengthens the core norms of the
Constitution. Choosing a faith is the substratum of individuality and sans
it, the right of choice becomes a shadow. It has to be remembered that
the realization of a right is more important than the conferment of the
right. Such actualization indeed ostracises any kind of societal notoriety
and keeps at bay the patriarchal supremacy. It is so because the
individualistic faith and expression of choice are fundamental for the
fructification of the right. Thus, we would like to call it indispensablepreliminary condition.”
10. Therefore the courts dealing with joint applications seeking
dissolution of marriage based on mutual consent should always bear
in mind that the choice of life of any individual, in accordance with law,
is the acceptance of identity of a person, which is constitutionally
guaranteed to every citizen. Therefore all endeavour from the side of
the courts should be in the line of protecting such rights and
facilitating such expressions of choice in one’s life. Therefore a liberal
approach in the matter of dissolution of marriage based on mutual
consent is warranted and is fully justified. Endevour of the courts
O.P.(FC) No.138 of 2019. 10
dealing with matrimonial matters should always be to promote such
situations. Once it became convinced that the marital tie has been
broken and the spouses have failed in their attempts to keep the
solemnity and sanctity of the ‘institution of family’ and that of their
marital relationship, their legal separation need to be facilitated with
utmost urgency.
11. Based on the findings as mentioned above, the Original
Petition is hereby allowed. Ext.P6 order passed by the Family Court,
Mavelikkara in I.A. 219/2019 in O.P.(Div) 36/2019 is hereby set aside.
The interim application (I.A.219/2019) seeking waiver of the statutory
period is hereby allowed. The Original Petition need to be considered
on its second motion, without any further delay.
12. It is submitted by learned counsel for the petitioner that the
2nd petitioner has got an offer for a job in U.A.E and she has to report
there on or before 7.3.2019, as evidenced from Ext.P4, copy of the
offer letter. In view of the observations contained herein above, we
think it is an appropriate case where the court shall not hesitate to
grant the relief, at the earliest.
Under the above mentioned circumstances, the Family Court
shall advance the posting of the case, immediately on production of
O.P.(FC) No.138 of 2019. 11
a certified copy of this judgment and shall consider and dispose of
the Original Petition itself, after conducting necessary enquiry as
contemplated under Section 10 A of the Act, if necessary after
conducting counseling/mediation on the same day itself, taking note
of the guiding principle contained in the decision of this court in Tiji
Daniel Vs. Roy Panamkoodan (2018 (5) KHC 288 (HC.) If the
certified copy of this judgment is produced by the petitioners on
05.03.2019 and if the case is advanced as directed above, the
Original Petition shall be dealt with and disposed of at the earliest, at
any rate, on or before 06.03.2019.
.
Sd/-
C.K.ABDUL REHIM,
JUDGE
Sd/-
T.V.ANILKUMAR,
JUDGE
al/-
O.P.(FC) No.138 of 2019. 12
APPENDIX
PETITIONER’S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MEMORANDUM O.P.(DIV.)
NO.36/2019 ON THE FILE OF THE FAMILY COURT,
MAVELIKKARA.
EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 07/01/2019
EXECUTED BY THE PETITIONERS.
EXHIBIT P3 TRUE COPY OF THE OFFER LETTER DATED
22/01/2019 ISSUED TO THE 2ND PETITIONER.
EXHIBIT P4 TRUE COPY OF THE PRINT OUT OF THE E-MAIL
RECEIVED BY THE 2ND PETITIONER DATED
17/02/2019.
EXHIBIT P5 TRUE COPY OF THE I.A.NO.219/2019 IN
OP(DIV.) NO.36/2019 OF THE FAMILY COURT,
MAVELIKKARA.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 21/02/2019 IN
I.A.NO.219/2019 IN OP(DIV.) NO.36/2019 OF
THE FAMILY COURT, MAVELIKKARA.
RESPONDENTS EXHIBITS : NIL
TRUE COPY
P.S TO JUDGE
AL/-
