Kerala High Court
Akshay Pradeep vs Nil on 10 January, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
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OP (FC) NO. 776 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 10TH DAY OF JANUARY 2025 / 20TH POUSHA, 1946
OP (FC) NO. 776 OF 2024
AGAINST THE ORDER IN I.A.NO.4/2024 IN OP NO.2004 OF 2024 OF
FAMILY COURT,ERNAKULAM
PETITIONER/1ST PETITIONER:
1 AKSHAY PRADEEP
AGED 29 YEARS
SON OF PRADEEPKUMAR P.K., POTTASSERIL HOUSE, POYYACHIRA
ROAD, KAKKANAD, KOCHI , NOW RESIDING AT FLAT NO.915,
PURVA GRANT BAY APARTMENTS, MARINE DRIVE, KOCHI
PRESENTLY EMPLOYED IN TOTAL MEDIA SOLUTIONS, LLC,
DUBAI, REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY
HOLDER SRI. PRADEEPKUMAR P.K., SON OF LATE. P.G.
KARUNAKARAN, AGED 59 YEARS, POTTASSERIL HOUSE, FLAT
NO.915, PURVA GRANT BAY APARTMENTS, MARINE DRIVE, KOCHI
- 682018, PRESENTLY WORKING AT DUBAI., PIN - 682018
2 MEENAKSHY PRABHUSHAD
AGED 26 YEARS
DAUGHTER OF PRABHUSHAD C.K., CHEMBRA HOUSE, CHELOOR,
CITADEL APARTMENTS, POONKUNNAM, THRISSUR, PRESENTLY
EMPLOYED IN AQUA PROPERTIES, OFFICE 1ST FLOOR, ISD
PLAZA, UMM AI SHEIKH ZAYED ROAD, DUBAI, REPRESENTED BY
HER POWER OF ATTORNEY HOLDER, FATHER, SRI. PRBHUSHAD
C.K., AGED 58 YEARS, SON OF KUNHIKUTTAN, CHEMBRA HOUSE,
RESIDING AT CHELOOR, CITADEL APARTMENTS, POONKUNNAM,
THRISSUR, PIN - 680 002.
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OP (FC) NO. 776 OF 2024
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BY ADVS.
D.G.VIPIN
DANIEL A.J.
MANISHA V.V
ANNA ROSE NAMBADAN
NANDAGOPAN S. NAIR
RESPONDENT/S:
NIL
NIL
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
10.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (FC) NO. 776 OF 2024
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JUDGMENT
DEVAN RAMACHANDRAN (J)
The petitioners are husband and wife,
who have filed an application for divorce,
under Section 13 B of the Hindu Marriage Act,
1955, with mutual consent.
2. Along with the Original Petition
filed before the learned Family Court,
Ernakulam - which is numbered as
O.P.No.2004/2024 - the petitioners moved
I.A.No.4/2024, seeking "to waive the cooling
off period of 6 months which has been provided
under Section 13B(2) of the Hindu Marriage
Act" (sic). However, this has now been
rejected by the learned Family Court through
the impugned order, namely Ext.P13.
3. Sri.V.V.Sidharthan - learned
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OP (FC) NO. 776 OF 2024
Senior Counsel, instructed by Sri.D.G.Vipin -
learned counsel for the petitioners, explained
that the sole reason why his clients
approached the learned Family Court with
I.A.No.4/2024 was because, the first among
them has already obtained an employment in
China - which offer, however, contains a
precondition that "he must be free of all
court cases in which he is a party" (sic).
4. The learned Senior Counsel pointed
out that since the marriage between the
parties have irretrievably broken down and
since there is no possibility of any reunion
between them, the impugned order causes them
extreme prejudice, particularly because,
unless the first petitioner is able to respond
to Ext.P14 immediately - as is evident from
the date mentioned therein being 20.01.2025 -
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OP (FC) NO. 776 OF 2024
he will lose his valuable opportunity of an
employment. The learned Senior Counsel
impressed upon us that this was the only
reason why the parties have approached this
Court; and therefore, pleaded that this matter
be treated as an exemption to the rule and the
prayer granted.
5. We have examined Ext.P13, which is
the order issued by the learned Family Court.
We must record upfront that we cannot find
fault with the learned Family Court in having
opined in the manner as reflected therein.
This is because, in Amit Kumar vs. Suman
Beniwal [AIR 2022 SC 570], the Hon'ble Supreme
Court has enumerated the specific criteria to
be adverted to and followed, before any
application of the nature impelled in this
case is considered. It is ineluctable that the
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most important of such criteria are (a) the
length of time of the marriage of the parties;
(b) the period during they lived together as
husband and wife; (c) the period when the
parties are living separately; (d) the time
duration of the litigation; and if there are
any other issues between the parties.
6. In the facts that are presented
before us, it is incontestable that the
marriage was soloemnized only on 18.05.2024
and that the application for divorce, namely
O.P.No.2004/2024, was preferred on 29.10.2024.
Going by the criteria aforementioned, it is
evident that the learned Family Court could
have done nothing more, then have issued
Ext.P13.
7. That said, however, the parties
were present before us today, with the first
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OP (FC) NO. 776 OF 2024
among them personally and the second, through
an online platform - since she is stated to be
working in UAE. Both the parties submitted
that they cannot live together and that there
is no chance of reconciliation; and further
that they want divorce at the earliest. Of
course, the second petitioner - wife did not
have any specific reason for the "cooling off
period" to be waived, except saying that she
cannot live with the 1st petitioner; while, the
latter reiterated that Ext.P14 offer makes it
incumbent upon him to respond to it by
20.01.2025, to the effect that he is free of
all cases and that he does not have any legal
proceedings pending against him. He reiterated
that if this case is still pending against
him, then he would not be able to join the
employment in China and that this would be
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devastating for him.
8. As we have already indited above,
in normal circumstances, we would not have
intervened in this matter since, we cannot
find the impugned order to be in error.
However, there are certain very peculiar facts
that are involved, namely, that the parties
have themselves come and informed us
personally that there is no chance of reunion
and that their marriage did not last even for
a few days. Add to this, Ext.P14, prima facie,
would indicate that, if the proceedings are
allowed to continue, the 1st petitioner would
possibly loose his employment in China, which
he says is very valuable for him.
9. We, therefore, are of the view
that this is a case where we will be justified
in taking a deviation from the norm and to
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carve an exemption, solely on account of the
peculiar scenario presented and projected.
In the afore circumstances and for the
sole reasons above, we allow this Original
Petition and set aside Ext.P13; and
consequently, allow I.A.No.4/2024 in
O.P.No.2004/2024 on the files of the learned
Family Court, Ernakulam. The learned Court
will proceed to pass appropriate final orders
in the Original Petition in terms of our afore
declaration without any avoidable delay, but
not later than one month from the date of
receipt of a copy of this judgment.
We, however, propose to deem it
absolutely necessary to clarify that our
directions herein are not intend to operate
as a precedent, even analogous circumstances;
and that we have created the exemption
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specifically only because of the peculiar
facts noticed and no other. This cannot be
construed to be a declaration of law in any
manner; and we reiterate that we have not
found fault with the learned Family Court, in
the opinion that it has recorded.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
SAS JUDGE
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OP (FC) NO. 776 OF 2024
APPENDIX OF OP (FC) 776/2024
PETITIONER'S EXHIBITS
Exhibit P-1 TRUE COPY OF THE MARRIAGE CERTIFICATE NO.4708
DATED 19.09.2024 ISSUED BY PARAMEKKAVU
DEVASWOM, ROUND EAST, THRISSUR
Exhibit P-2 TRUE COPY OF THE POWER OF ATTORNEY DATED
28.10.2024 EXECUTED BY THE 1ST PETITIONER IN
FAVOUR OF HIS FATHER, SRI. PRADEEPKUMAR P.K.
Exhibit P-3 TRUE COPY OF THE POWER OF ATTORNEY DATED
23.10.2024 EXECUTED BY THE 2ND PETITIONER IN
FAVOUR OF HER FATHER AND POWER OF ATTORNEY
HOLDER, SRI. PRABHUSHAD C.K.
Exhibit P-4 TRUE COPY OF AGREEMENT DATED 28.10.2024
ENTERED BETWEEN THE 1ST AND THE 2ND
PETITIONER
Exhibit P-5 TRUE COPY OF I.A.23/2024 IN UN-NUMBERED O.P.
2024 FILED BEFORE THE FAMILY COURT,
ERNAKULAM, TO WAIVE THE ONE YEAR COOLING
PERIOD
Exhibit P-6 TRUE COPY OF THE AFFIDAVIT FILED BY THE POWER
OF ATTORNEY HOLDER OF THE 2ND PETITIONER
Exhibit P-7 TRUE COPY OF THE ORDER DATED 4.11.2024 IN
I.A.23/2024 IN UN-NUMBERED OP. 2024
Exhibit P-8 TRUE COPY OF THE JOINT PETITION, FILED UNDER
SECTION 13 B OF THE HINDU MARRIAGE ACT
NUMBERED AS O.P. NO. 2004 OF 2024
Exhibit P-9 TRUE COPY OF THE APPOINTMENT ORDER DATED
14.11.2024 ISSUED BY M/S. ORIENT FLEX NEW
MATERIAL CO. LTD., SHANGHAI, REPUBLIC OF
CHINA
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Exhibit P-10 TRUE COPY OF THE REQUEST LETTER DATED
11.12.2024 SENT BY WAY OF E-MAIL REQUESTING
TO HIS EMPLOYER TO EXTENT THE JOINING TIME BY
TWO WEEKS FROM 22.12.2024
Exhibit P-11 TRUE COPY OF I.A.3/2024 DATED 25.11.2024
FILED TO ADVANCE THE HEARING OF THE JOINT
PETITION FROM 5.5.2024 TO A NEAR DATE
Exhibit P-12 TRUE COPY OF I.A.4/2024 FILED BY THE
PETITIONERS TO WAIVE THE COOLING OFF PERIOD
OF 6 MONTHS PROVIDED UNDER SECTION 13 B (2)
OF THE HINDU MARRIAGE ACT, 1955
Exhibit P-13 TRUE COPY OF ORDER DATED 7.12.2024 DISMISSING
EXHIBIT P-12, (I.A.4/2024) APPLICATION TO
WAIVE THE COOLING OFF PERIOD OF 6 MONTHS
PROVIDED UNDER SECTION 13 B (2) OF THE HINDU
MARRIAGE ACT, 1955
Exhibit P-14 TRUE COPY OF THE EMAIL COMMUNICATION RECEIVED
BY THE 1ST PETITIONER
Exhibit P14(a) PROPERLY CERTIFIED PRINTOUT OF EXHIBIT P-14
