Abu P.Abraham vs Anu T.Cherian
2021 Latest Caselaw 674 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                                    &

                THE HONOURABLE MRS. JUSTICE M.R.ANITHA

     FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                         OP (FC).No.5 OF 2021

AGAINST THE ORDER IN OP 779/2020 OF FAMILY COURT, PATHANAMTHITTA


PETITIONER:

              ABU P.ABRAHAM
              AGED 40 YEARS
              S/O ABRAHAM P.JOHN, ABU COTTAGE, VATTAVILAYIL,
              ULANADU P.O.KULANADA (VIA), PATHANAMTHITTA DIST, PIN-
              689 503, PRESENTLY WORKING AT NEW ZEALAND.

              BY ADVS.
              SRI.S.SAJU
              SRI.A.V.SAJAN
              SMT.NEELANJANA NAIR

RESPONDENT:

              ANU T.CHERIAN, AGED 40 YEARS
              D/O T.V.CHERIAN, THATTASSERIL PUTHEN VEEDU,
              KARITHOTTA (PO), MEZHUVELI, PATHANAMTHITTA DISTRICT,
              PIN-689 514, PRESENTLY WORKING
              AT NEW ZEALAND


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION         ON
08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P. {FC} No.5 of 2021
                                               - 2 -


                  K. Vinod Chandran & M.R Anitha, JJ.
                 -------------------------------------
                        O.P. {FC} No.5 of 2021
                  ------------------------------------
               Dated, this the 08th day of January, 2021

                                             JUDGMENT

Vinod Chandran, J.

The original petition is filed by the husband

seeking a direction to the Family Court for conducting

counseling as also taking of evidence through Video

conferencing. It is also prayed that the statutory time

period of six months be waived for which a petition is filed

before the Family Court. Though the prayers are innocuous we

find that there is a clear abuse of process of Court as

evidenced from the records placed before us.

2. Ext.P1 is the application for divorce on mutual

consent numbered as O.P 729/2020. Ext.P2 is an I.A seeking

waiver of the statutory period stipulated under Section 10A

of the Indian Divorce Act, 1869. Ext.P3 is an application

filed for holding a video conference for counseling and

evidence. Ext.P4 is the proof affidavit filed. All these

documents are said to be executed from New Zealand before a

Notary Public as is the instant original petition. The

alarming factor which we notice is that all these documents

including the last page of the memorandum of Original O.P. {FC} No.5 of 2021

- 3 -

Petition and the affidavit accompanying are executed on the

very same day ie, 19.10.2020. An application for divorce,

petitions for waiver of statutory period, video conferencing

and the proof affidavits cannot be filed on the same day nor

can all these petitions be executed even before institution

of the proceedings. Especially when there is stipulation for

counseling and a statutory period after which alone the

application for divorce can be taken up. The parties cannot

render nugatory the legislative intention to effect

reconciliation; if possible.

3. A Division Bench of this Court in 1990 (1) KLT

328 [Janardhanan vs. Syamala Kumary] considering the effect

of Section 13B under the Hindu Marriage Act, 1955 found that

agreeing with each other to dissolve a marriage was never

regarded in law, as consistent with public policy. A caution

was expressed insofar as the Courts being duty bound to guard

against collusion between parties for wangling unmerited

divorce decrees. Section 13B was held to be not a carte

blanche granted by Parliament to the spouses to dissolve

marriage on mutual agreement. Section 13B was incorporated

in the Hindu Marriage Act by Act 68 of 1976, while Section

10A was introduced in the Divorce Act 1869, much later, by

Act 51 of 2001. They are worded similar except for Section O.P. {FC} No.5 of 2021

- 4 -

10A providing for the spouses having to live separately for a

period of two years and above as against one year stipulated

in Section 13B. The principle applies squarely and it is

pertinent that it is only on satisfaction of the Court, after

hearing the parties and after such an enquiry as the Court

thinks fit that the marriage has been solemnized and the

averments in the petitions are true can the Court pass a

decree of divorce under both the provisions. We also

respectfully notice the decision of the Hon'ble Supreme Court

reported in 2017(4) KHC 683 (SC) [Amardeep Singh vs. Harveen

Kaur] wherein, while laying down guidelines as to how the

consideration under Section 13 B has to be made, specifically

in paragraph 19 held: "The waiver application can be filed

one week after the first motion giving reasons for the prayer

for waiver"(sic.).

4. Further it is to be noticed that even at the time of

executing the applications the petitioners had executed the

original petition also seeking a direction under Article 227

without waiting for the Family Court to consider the

application filed for waiver and video conferencing. We also

see that the original petition is dated 30.11.2020 and the

interim relief portion only indicate the signature of the

petitioner having been Notarized in New Zealand. In that O.P. {FC} No.5 of 2021

- 5 -

circumstance the affidavit dated 19.10.2020 supporting the

memorandum of the original petition which is dated 30.11.2020

cannot be accepted. We find clear abuse of process of Court.

5. We also observe that the copies of proof

affidavit which are produced herein does not indicate it to

be executed in the presence of the Notary. Yet again the

application filed for waiving the statutory period is filed

by the husband with the recital that he is affirming the

affidavit on behalf of the wife also. When the wife was

present before the Notary on that date and also affixed her

signature in the petition for divorce on mutual consent, we

do not understand why the application for waiver of statutory

period was not executed by both together. We have very

serious doubts about the present application and the Family

Court would also be cautious insofar as the OP itself

indicating the signatures having been affixed at places

marked with 'x'.

6. Obviously the petition for divorce filed by the

parties who are permanently residing in New Zealand is to

save money; taking into account the litigation expenses

there. But we cannot condone such sharp practices resorted

to, reducing the Courts in India to mere jurisdictions of

convenience.

O.P. {FC} No.5 of 2021

- 6 -

We reject the O.P with cost imposed of Rs.25,000/-,

on the petitioner, which shall be remitted to the Kerala

State Legal Services Authority within a period of one month.

We further direct that the O.P for divorce shall not be taken

up unless proof of payment of cost is produced. When the

applications are taken up, the identity of the parties should

be ensured and the parties directed to file fresh proof

affidavits as also fresh application for waiver of the

statutory period since the present application is only

executed by the husband. If cost as directed has not been

paid we direct the Family Court to reject the petition for

divorce itself.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

M.R ANITHA JUDGE jma O.P. {FC} No.5 of 2021

- 7 -

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION FILED AS OP NO 779/2020 BEFORE THE HON'BLE FAMILY COURT AT PATHANAMTHITTA DATED 19.10.2020

EXHIBIT P2 TRUE COPY OF THE IA 1/2020 IN OP NO 779/2020 DATED 23.11.2020

EXHIBIT P3 TRUE COPY OF THE IA 2/2020 IN OP NO 779/2020 DATED 23.11.2020 FOR HOSTING VIDEO CONFERENCE TO TAKE COUNSELLING & EVIDENCE

EXHIBIT P4 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PETITIONER DATED 19.10.2020

EXHIBIT P5 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE RESPONDENT DATED 19.10.2020