Farhana vs Ajil
2021 Latest Caselaw 2819 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                               &

              THE HONOURABLE MR. JUSTICE T.R.RAVI

 MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                    OP (FC).No.488 OF 2020

 AGAINST THE ORDER/JUDGMENT IN OPSMA 626/2020 OF FAMILY
                     COURT, CHAVARA


PETITIONER:

              FARHANA, AGED 22 YEARS, D/O. NISSAR,
              PALLITHOPPIL VEEDU, ELIPPIKKULAM P.O,
              ELIPPIKKULAM, KATTANAM VILLAGE, MAVELIKARA
              TALUK, ALAPPUZHA DISTRICT, PIN - 690 503.

              BY ADVS.
              SRI.SAM ISAAC POTHIYIL
              SMT.TINU JOHNSON
              SHRI.VISHNU DAS
              SRI. SRUTHI DAS
              SHRI.JOMON P MOHAN
              SHRI.PHILIP ARUN M.N.

RESPONDENT:

              AJIL, AGED 32 YEARS, S/O. MURALEEDHARAN,
              PULIYOOR VANCHI SOUTH MURI, EDAKULANGARA P.O,
              THODIYUR VILLAGE, KARUNAGAPALLY TALUK, KOLLAM
              DISTRICT, PIN - 690 523.


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC).No.488 OF 2020

                              ..2..




                         JUDGMENT

Dated this the 25th day of January 2021

A.Muhamed Mustaque, J

This original petition was filed challenging an order

in I.A. No. 2 of 2020 in O.P (SMA) No. 626/2020 on the

file of the Family Court, chavara. The petitioner and

respondent are the petitioners before the Family Court,

Chavara. They filed a petition for divorce by mutual

consent under Sec. 28 of the Special Marriage Act, 1954

(for short the Act ). The petition was filed on 6.10.2020.

It appears that on 20.10.2020 the petitioner filed an

application to waive the statutory period of six months

as contemplated in Sub Sec. 2 of Sec. 28 of the Act for

motion to take up the application. This application has OP (FC).No.488 OF 2020

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been dismissed by the Family Court. Challenging this,

the petitioner approached this Court under Article 227 of

the constitution of India.

2. The Family Court noting that, merely for the

reason, the parties are living separately from 13.04.2017,

that cannot be a reason to exclude the cooling off period

of six months as contemplated in the statute. The

Family Court also observed that the Court has to make

all the efforts for reconciliation.

3. This order was passed on 27.10.2020. It is to

be noted that more than three months is over. We do not

find any reason to interfere with the order under Article

227 of the Constitution of India. The petitioner can very

well move the Family court immediately, after six OP (FC).No.488 OF 2020

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months from the date of application under Sec. 28 of the

Act. Since, there is no illegality in the order, we are not

inclined to interfere with the order. Accordingly, this

original petition is dismissed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

T.R.RAVI

JUDGE

PR OP (FC).No.488 OF 2020

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APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF MARRIAGE UNDER SECTION 13 OF THE SPECIAL MARRIAGE ACT, 1954 DATED 7.11.2016.

EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 6.10.2020 EXECUTED BETWEEN THE PETITIONER AND THE RESPONDENT.

EXHIBIT P3 TRUE COPY OF IA NO.02/2020 IN OP(SMA) NO.626/2020 FILED BEFORE THE FAMILY COURT, CHAVARA.

EXHIBIT P4 CERTIFIED COPY OF THE ORDER DATED 27.10.2020 IN IA NO.02/2020 IN OP(MSA) NO.626/2020 OF THE FAMILY COURT, CHAVARA.

EXHIBIT P5 TRUE COPY OF THE DICTUM LAID DOWN BY THE APEX COURT IN AMARDEEP SINGH VS HARVEEN KAUR(2017(4) KLT 367(SC)

EXHIBIT P6 TRUE COPY OF THE DICTUM LAID DOWN BY THIS HON'BLE COURT IN TOMY JOSEPH VS. SMITHA TOMY (2018(4) KLT 770)