Kerala High Court
Soumya vs Nil on 5 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942
OP (FC).No.87 OF 2021
AGAINST THE ORDER IN I.A3/2021 IN OP 789/2020 DATED 18-01-2021 OF
FAMILY COURT, OTTAPPALAM
PETITIONERS/PETITIONERS:
1 SOUMYA
AGED 31 YEARS
D/O. SUKUMARAN, VADAKKEDATH VEEDU, KUMARAMPUTHOOR
POST, VATTAMBALAM, MANNARKKAD TALUK, PALAKKAD
DISTRICT-678583 (MANNARKKAD POLICE STATION LIMIT)
2 ANIL
AGED 39 YEARS
S/O. KUMARAN, MELMURI VEEDU, PARUTHIPPULLY EAST POST,
PERINGOTTUKURUSSI, PARUTHIPPULLY AMSOM, PALAKKAD-
678573 (KOTTAYI POLICE STATIONLIMIT).
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
SMT.D.S.THUSHARA
SRI.H.PRAVEEN (KOTTARAKARA)
SRI.T.S.NEJIMUDDIN
SMT.T.V.NEEMA
RESPONDENT/S:
NIL
X
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No.87 OF 2021
2
JUDGMENT
Dated this the 5th day of February 2021
C.S.DIAS,J.
The original petition is filed to quash the order
dated 18.1.2021 in I.A No.3/2021 (Ext.P1) in O.P.
No.789/2020 of the Family Court, Ottappalam.
2. The facts, in a nut-shell, in the original
petition are as follows:- The petitioners are husband
and wife. They have filed O.P.No.789/2020 to dissolve
their marriage solemnised on 17.4.2011, by a decree
of divorce, on mutual consent, as provided under
Section 13B of the Hindu Marriage Act,1955. The
petitioners filed Ext.P1 application in O.P. No.789/2020
to waive the statutory waiting period of six months.
The Family Court by Ext.P2 order, dismissed Ext.P1
application on the grounds that the 2nd petitioner had
not filed an affidavit in support of the application and
that the 1st petitioner had not specifically stated that all
the matrimonial disputes between the parties were
OP (FC).No.87 OF 2021
settled.
3. Heard Smt.Neema T.V, the learned counsel
appearing for the petitioners.
4. It is no longer res-integra, in view of the
categoric declaration of law by the Hon'ble Supreme
Court in Amardeep Singh v. Harveen Kaur [2017 (4)
KLT 367 (SC)], that courts dealing with matters
under Section 13B of the Hindu Marriage Act, 1955
have the inherent power to waive the statutory waiting
period of six months contemplated under Section 13B
(2), if it is satisfied that a case is made out and if
there were/are pending proceedings between the
parties before the Court. Paragraphs 18 and 19 of
Amardeep Singh (supra) read thus:
"18. Applying the above to the present
situation, we 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 13B (2), it
can do so after considering the following.
(i) the statutory period of six months specified
in Section 13B(2) in addition to the statutory period of
OP (FC).No.87 OF 2021
one year under Section 13B(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 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.
19. The waiver application can be filed one
week after the first motion giving reasons for the
prayer for waiver.
5. From the averments in O.P No.789/2020, it is
discernible that the marriage between the petitioners
was solemnised on 17.4.2011; that they started living
separately since 27.4.2013; that there were
proceedings between the parties before the Judicial
First Class Magistrate's Court, Mannarkkad as CC
659/2014, before the Family Court, Ottappallam as MC
OP (FC).No.87 OF 2021
Nos.99/2014 and 728/2018 and before the Family
Court, Palakkad as O.P.No.1070/2013. The petitioners
arrived at a harmonious settlement in all the above
cases and consequently filed O.P. 789/2020, to dissolve
their marriage on mutual consent. Thereafter, on
11.1.2021, they filed Ext.P1 to waive the statutory
waiting period of six months to move the second
motion as laid down in Amardeep Singh (supra).
However, the Family Court by the impugned Ext.P2
order, declined to waive the statutory waiting period on
the grounds aforementioned
6. It is undisputed that the matrimonial turmoil
started way back in the year 2014, by filing CC
No.659/2014, i.e, now more than 6 years back. The
petitioners have in unison averred in O.P 789/2020
and in this original petition that they have settled all
the disputes arising out of their marital relationship.
7. On a comprehensive appreciation of the
averments in O.P.789/2020 and Exts.P1 and P2 in juxta
OP (FC).No.87 OF 2021
position with the ratio decidendi in Amardeep Singh
(supra), we are convinced that the petitioners have
fulfilled the para meters in Amardeep Singh
(supra).
8. The preamble of the Family Courts Act, 1984,
states that it is a legislation enacted, inter alia, to
secure speedy settlement of disputes.
9. Going by the spirit and objective of the
enactment and the uncontroverted facts in O.P.
No.789/2020, it is nobody's case that there are
pending disputes between the parties. In the said
situation, the Family Court ought to have taken the
averments in the affidavit on its face value and allowed
Ext.P1, instead of banking on technicalities, which
has only prolonged the trauma and agony of the
petitioners, to continue to languish on the corridors of
the Court. On being satisfied that the petitioners
have fulfilled the guidelines in Amardeep Singh
OP (FC).No.87 OF 2021
(supra), we are inclined to allow Ext.P1.
10. In light of our above findings, in exercise of
the supervisory jurisdiction of this Court as enshrined
under Article 227 of the Constitution of India, we set
aside Ext.P2 order and allow I.A No.312/2021 in
O.P.No.789/2020, by waiving the statutory waiting
period of six months to move the second motion in O.P.
No.789/2020. The Family Court shall forthwith permit
the petitioners to file their affidavits in-lieu of their
chief examination and interact with the parties, if felt
necessary, and pass a decree of divorce, in accordance
with law, as expeditiously as possible, at any rate
within two weeks from the date of receipt of a copy of
this judgment.
The original petition is ordered accordingly.
Sd/- A.MUHAMED MUSTAQUE
JUDGE
Sd/- C.S.DIDAS, JUDGE
ma/5.2.2021
/True copy/
OP (FC).No.87 OF 2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AFFIDAVIT AND PETITION
FILED IN SUPPORT OF IA 3/2021 IN OP
789/2020 DATED 11/01/2021.
EXHIBIT P2 TRUE COPY OF THE ORDER IN IA 3/2021 IN
OP 789/2020 OF THE FAMILY COURT,
OTTAPALAM DATED 18/01/2021.
