Kerala High Court
Thrissur) vs By Advs.Sri.S.Ganesh on 6 July, 2018
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940
OP (FC).No. 378 of 2018
(AGAINST THE ORDER IN I.A.NO.2467/2018 IN OP NO.866/2018 OF THE JUDGE, FAMILY COURT,
THRISSUR)
PETITIONER/PETITIONER NO.1
S.SUBHACHANDHAR,
AGED 27 YEARS,
S/O S.SHAHMUGASUNDARAM,
R/O NO.16, 2ND AVENUE, DAE TOWNSHIP, KALPAKKAM
KANDHIPURAM-603 127, TAMIL NADU
BY ADVS.SRI.S.GANESH
SRI.V.K.RAJANANDAN
SRI. K.N.SATHEESAN
RESPONDENT/PETITIONER NO.2:
LAKSHMI SURESH,
AGED 25 YEARS,
W/O S.SUBHACHANDHAR,
D/O SURESH KUMAR,
R/O NO:17, BHAIRAVI,
ANUPURAM DAE TOWNSHIP,
KALPAKKAM, KANCHIPURAM,
PIN-603127, TAMIL NADU
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06-07-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.K.ABDUL REHIM
&
R.NARAYANA PISHARADI, JJ.
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O.P.(FC) No.378 of 2018
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Dated this the 6th day of July, 2018
JUDGMENT
C.K.Abdul Rehim,J The petitioner and the respondent are the husband and wife. They have approached the Family Court, Thrissur in O.P.No.866/2018 seeking dissolution of the marriage based on mutual consent, under Section 13B of the Hindu Marriage Act. Along with the original petition, they have filed I.A.No.2467/2018 under Section 13B(2) seeking waiver of the statutory period of six months for making motion for passing orders on the dissolution application. The said interim application was considered and dismissed by the Family Court through Ext.P4 order passed on 21.06.2018. The petitioner is challenging the said order by invoking the supervisory jurisdiction vested on this Court under Article 227 of the Constitution of India. O.P.(FC) No.378/2018 2
2. The counsel who filed the joint application before the Family Court beg to appear on behalf of the respondent. We are of the opinion that the above original petition can be disposed of at the stage of admission itself.
3. In the interim application filed before the Family Court it is stated that, the respondent is doing Ph.D in Singapore and that she may not be able to appear before the Family Court after expiry of the period of six months. It is stated that, the petitioner is also seeking job at United States of America. Therefore it was requested to waive the statutory period to consider the petition for dissolution of the marriage, immediately. The Family Court, after referring to the ruling of the Honourable Supreme Court in Amardeep Singh v. Harveen Kaur (AIR 2017 S.C 4417) observed that, the conditions stipulated by the apex court for waiver of the statutory period, has not been satisfied in the case. It is mainly observed that, the period of one year and six months stipulated therein, after separation of the spouses, has not been completed. Further finding is that, no O.P.(FC) No.378/2018 3 proof was there to show that any effort for settlement through 'Alternative Dispute Resolution Mechanism' was adopted. Therefore the application for waiver of the statutory period was dismissed by observing that the conditions stipulated by the Hon'ble Supreme Court has not been fulfilled.
4. Learned counsel for the petitioner submitted that, the parties have filed another interim application as I.A.No.2979/2018, seeking for amendment of the original petition, to the extent of correcting the date of separation from 01.01.2017 to 01.01.2016. It is submitted that, on the date of filing of the joint application, the parties had undergone counselling at the Family Court. It is also pointed out that the respondent is coming on a short leave from Singapore during the next week. According to the petitioner, he is leaving to U.S.A on 15.07.2018. Under such circumstances, both the parties seek indulgence of this court to direct the Family Court to allow the waiver sought for. It is stated that the original petition as well as I.A.No.2979/2018 are now stands posted to 07.09.2018. It is O.P.(FC) No.378/2018 4 submitted that, unless the matter is advanced by the Family Court and an early order is not passed, the parties will be put to irreparable prejudices and legal injuries.
5. We take note of the fact that the period of one year and six months stipulated in clause No.(i) in paragraph 18 of Amardeep Singh's case (supra) will be satisfied only if the Family Court allows the amendment application. We also take note of Clause No.(iv) under the same paragraph. One of the criteria for allowing the waiver stipulated is as to whether the waiting period will prolong the agony of the parties or not. In the case at hand, it is evident from the joint petition filed before the court below that, the matrimonial relationship has been irrecoverably broken and the parties have decided to get legally separated from the matrimonial tie. Evidently the parties are intending to reside abroad at two parts in the world. The legal relationship, if continued, will definitely cause agony and prejudice to them. It is true that the Hon'ble Supreme Court had insisted that, for allowing waiver of the statutory period, the O.P.(FC) No.378/2018 5 Family Court should ensure that efforts for mediation/conciliation, including the efforts in terms of Order 32A Rule 3 of the Code of Civil Procedure, has to be ensured. It is stated that a counselling was already conducted. If, further mediation is required, that can also be expedited by issuing necessary orders from the Family Court. We think it appropriate that a re-consideration of the application in the wake of the amendment sought for, will only protect the interest of justice.
6. Under the above mentioned circumstances, we set aside Ext.P4 order of the Family Court, Thrissur in I.A.No.2467/2018 in O.P.No.866/2018, dated 21.06.2018. That court is directed to advance the posting of the case immediately on receipt of a copy of this judgment. That court shall re- consider I.A.No.2467/2018 along with I.A.No.2979/2018, at the earliest. The parties shall be referred for mediation, if found necessary and the application seeking waiver of the statutory period shall be disposed of afresh, in the light of the observations contained hereinabove. Needless to observe that, if the waiver of O.P.(FC) No.378/2018 6 statutory period is allowed, the parties shall be permitted to make motion of the original petition and the original petition shall be disposed of in accordance with the relevant provisions.
The above steps shall be completed by the Family Court at the earliest, at any rate, before 13.07.2018, if the parties appear and co-operate with the proceedings.
(sd/-) C.K.ABDUL REHIM, JUDGE (sd/-) R.NARAYANA PISHARADI, JUDGE jsr