Revathi.M vs Sanoj
2023 Latest Caselaw 858 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                 &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
                    OP (FC) NO. 422 OF 2022
    CONSIDERATION OF O.P.NO.71 OF 2020 OF FAMILY COURT,
                         KASARAGOD

PETITIONER:


         REVATHI.M
         AGED 29 YEARS, D/O.RAJMOHAN A.M.
         'PRARTHANA', KRISHNA NAGAR
         VIDYANAGAR, KASARAGOD,, PIN - 671123

         BY ADVS.
         M.SASINDRAN
         A.ARUNKUMAR

RESPONDENT:


         SANOJ
         S/O.SASHINDRAN P., CHAITHANYAM, PATTATHANAM
         BEKAL POST, PALLIKKARA - II
         KOTTIKULAM VILLAGE, HOSDURG TALUK
         KASARAGOD DISTRICT, PIN - 671318

         BY ADVS.
         RONY JOSE
         ENOCH DAVID SIMON JOEL(K/925/2009)
         S.SREEDEV(K/1219/2006)
         LEO LUKOSE(K/001131/2016)
         CIMIL CHERIAN KOTTALIL(K/345/2017)

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
17.01.2023,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 O.P.(FC)No.422 of 2022

                                  2

                            JUDGMENT

Anil K. Narendran, J.

The petitioner is the respondent in O.P.No.71 of 2020 on the

file of the Family Court, Kasaragod, which is one filed by the

respondent herein-husband, seeking a declaration that the

marriage solemnized between the parties on 25.08.2019 is null

and void. The petitioner has filed this original petition, invoking

the supervisory jurisdiction of this Court under Article 227 of the

Constitution of India, seeking an order to set aside Ext.P12 order

dated 22.06.2022 of the Family Court in O.P.No.71 of 2020,

whereby the preliminary issue raised on the maintainability of

that original petition was found against the petitioner. The

petitioner has also sought for a declaration that Ext.P1 original

petition is not maintainable before the Family Court.

2. On 25.07.2022, when this original petition came up for

admission, this Court issued notice before admission to the

respondent by speed post. Simultaneously, the petitioner was

permitted to serve notice on the respondent through his counsel

before the Family Court, Kasaragod. This Court granted an interim

order staying all further proceedings pursuant to Ext.P12,

pending disposal of this original petition. The said interim order, O.P.(FC)No.422 of 2022

which was extended from time to time, is still in force.

3. During the pendency of this original petition, the

parties were referred for mediation. They have settled the

disputes in mediation and the memorandum of agreement dated

03.01.2023 executed between the parties is placed on record

along with the report dated 03.01.2023 of the Mediator. In terms

of the terms and conditions contained in the memorandum of

agreement dated 03.01.2023, I.A.Nos.1 and 2 of 2023 have been

filed in this original petition. I.A.No.2 of 2023 is a joint petition

filed under Section 13B of the Hindu Marriage Act, 1955 seeking

a decree of divorce on mutual consent, and I.A.No.1 of 2023 is

one filed invoking the provisions under Section 13B(2) of the Act,

to waive the statutory period of six months.

4. On 16.01.2023, when this original petition came up for

consideration, both parties were personally present in Court. We

have interacted with the parties. By the order dated 16.01.2023,

this original petition was ordered to be listed today, for the

learned counsel on both sides to address arguments on the

maintainability of those interlocutory applications in an original

petition filed under Article 227 of the Constitution of India. On

16.01.2023, it was pointed out before this Court that, O.P.No.71 O.P.(FC)No.422 of 2022

of 2020 filed by the respondent herein before the Family Court,

Kasaragod has already been dismissed as withdrawn, based on

the mediation agreement.

5. Heard the learned counsel for the petitioner and also

the learned counsel for the respondent.

6. As already noticed hereinbefore, this original petition

is one filed invoking the supervisory jurisdiction of this Court

under Article 227 of the Constitution of India. An application for

divorce on mutual consent, invoking the provision under Section

13B of the Hindu Marriage Act, can be entertained before the

Family Court having territorial jurisdiction or in an appeal pending

before this Court, under Section 19(1) of the Family Courts Act,

1984 arising out of the judgment and decree of the Family Court.

Such an application cannot be entertained in an original petition

filed before this Court under Article 227 of the Constitution of

India, since no decree of divorce can be passed in such an original

petition, in exercise of the supervisory jurisdiction.

7. The learned counsel for the petitioner and also the

learned counsel for the respondent would submit that parties shall

file a joint petition, invoking the provisions under Section 13B of

the Hindu Marriage Act, before the Family Court, Kasaragod, O.P.(FC)No.422 of 2022

along with an application under Section 13B(2) of the said Act to

waive the statutory period of six months, since both parties are

residing separately from December, 2019 onwards.

8. In such circumstances, this original petition is disposed

of in terms of the terms and conditions contained in the

memorandum of agreement dated 03.01.2023, subject to the

modification that the joint petition for divorce on mutual consent

under Section 13B of the Hindu Marriage Act, in terms of that

settlement, shall be filed before the Family Court, Kasaragod,

along with an application under Section 13B(2) of the said Act to

waive the statutory period of six months.

9. The learned counsel on both sides would submit that

the parties shall file a joint petition before the Family Court,

Kasaragod, under Section 13B of the Hindu Marriage Act, for a

decree of divorce on mutual consent, within one week. The

learned counsel for the respondent would submit that since the

respondent, who is a member of the Armed Forces, has to rejoin

duty immediately, he shall file an application before the Family

Court, Kasaragod seeking permission to appear online in the

proceedings in the joint petition filed under Section 13B of the

said Act.

O.P.(FC)No.422 of 2022

Having considered the submissions made at the Bar, we

deem it appropriate to direct the Family Court, Kasaragod or the

Court holding charge of the said Family Court to consider the

original petition filed under Section 13B of the Hindu Marriage

Act, along with the interlocutory applications, as expeditiously as

possible, taking note of the settlement of disputes in mediation.

Sd/-

ANIL K. NARENDRAN JUDGE

Sd/-

P.G. AJITHKUMAR JUDGE yd O.P.(FC)No.422 of 2022

APPENDIX PETITIONER EXHIBITS

ExhibitP1 A TRUE COPY OF THE PETITION O.P.NO.71 OF 2020 OF THE FAMILY COURT, KASARAGOD

ExhibitP2 THE PETITIONER PRODUCES THE CERTIFICATE OF REGISTRATION AS A DOCTOR, IN THE KARNATAKA MEDICAL COUNCIL DATED 05-03-

ExhibitP3 A TRUE COPY OF THE EXPERIENCE CERTIFI-

CATE DATED 28-05-2016 ISSUED BY THE DISTRICT PROGRAMME MANAGER, AROGYA KER-

ALA, NHM KASARAGOD

ExhibitP4 A TRUE COPY OF THE EXPERIENCE CERTIFI-

CATE DATED 21-10-2020 BY AROGYA KERALAM KASARAGOD

ExhibitP5 A TRUE COPY OF THE SUMMONS RECEIVED FROM THE SESSIONS COURT, KASARAGOD DATED 26-03-2018, TO THE PETITIONER AS AN OFFICIAL WITNESS

ExhibitP6 A TRUE COPY OF THE CERTIFICATE DATED 27-02-2021 ISSUED BY THE SESSIONS COURT, KASARAGOD

Exhibit 6A A TRUE COPY OF THE CERTIFICATE SHOWING THE ADDITIONAL QUALIFICATION OF THE PE- TITIONER ISSUED BY THE KARNATAKA MEDI- CAL COUNCIL IS PRODUCED HEREWITH

ExhibitP7 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN O.P.NO.71 OF 2021 BEFORE THE FAMILY COURT, KASARAGOD

Exhibit8 A TRUE COPY OF THE I.A.NO.1 OF 2022 IN O.P. 71 OF 2021, AND THE AFFIDAVIT IN SUPPORT OF THE SAME IS PRODUCED HERE-

WITH

Exhibit9 THE RESPONDENT HAS FILED A COUNTER TO THE I.A. ON 18-03-2022 WHICH IS PRO-

DUCED HEREWITH O.P.(FC)No.422 of 2022

Exhibit10 . A TRUE COPY OF THE ISSUE FRAMED BY THE FAMILY COURT, DATED 23-03-2022 IS PRODUCED HEREWITH

Exhibit11 A TRUE COPY OF THE JUDGMENT DATED 27-

05-2022 IN O.P.(FC) 193 OF 2022 IS PRO-

DUCED HEREWITH

Exhibit12 . A TRUE COPY OF THE ORDER DATED 22.06.2022 IN OP 71/2020 OF THE FAMILY COURT, KASARAGOD IS PRODUCED HEREWITH