Madras High Court
C.Dinesh Kumar vs D.Shiny on 26 November, 2014
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.11.2014 CORAM THE HONOURABLE MRS.JUSTICE S.VIMALA C.M.A.(MD)No.292 of 2014 C.Dinesh Kumar ... Appellant Vs. D.Shiny ... Respondent Appeal filed under Section 32 of the Indian Divorce Act IV of 1869, against the decree and order dated 03.01.2014 made in IDOP No.31 of 2013 passed by the II Additional District and Sessions Judge, Tiruchirappalli. !For Appellant : Mr.P.Kamaraj ^For Respondent : Mr.M.Silambarasan :JUDGMENT
The dispute is between the husband and wife. The husband filed a petition in IDOP No.31 of 2013 seeking the relief of dissolution of marriage that took place on 23.11.2012. The petition was dismissed by the judgment dated 03.01.2014.
2.Challenging the dismissal, the appellant / petitioner / husband, has filed this appeal.
3.The husband had sought for divorce on the ground of cruelty and desertion. It is the grievance of the appellant/husband that the Trial Court discussed the issue regarding desertion and did not discuss the issue regarding cruelty.
4.The contention is that, had the Trial Court discussed the issue regarding cruelty, the petition could have been allowed.
5.Perusal of the order passed by the Court would go to show that the discussion is only regarding desertion. The Trial Court has mentioned that the desertion was during March 2012. Giving a finding that, as the petition had been presented on 27.02.2013 and if the relief of divorce on the ground of desertion is to become maintainable, the petition ought to have been filed after March 2014 (as the law requires desertion for at least two years immediately preceding the presentation of the petition), the Trial Court stated that the petition is not maintainable and it is liable to be dismissed.
6.Before this Court, Joint Memo of compromise has been filed seeking the relief of divorce by mutual consent. Whether this relief can be granted by this Court at this stage, is the issue to be considered.
7.Under Section 10-A of the Divorce Act, 1869, petition for divorce by mutual consent can be filed on the ground that both parties have been living separately for a period of two years or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
7.1 The motion should be made not earlier than 6 months after the presentation of the petition and not later than 18 months after the said date, if the petition is not withdrawn by both parties in the mean time.
8.From the perusal of the provision, it is clear that the parties would be entitled to decree for divorce by mutual consent if they had remained separated for two years and also they have waited for 6 months after the presentation of the petition for divorce. So far as this case is concerned, The date of marriage is 23.11.2011. They are remaining separate from March 2012. The petition for divorce has been presented before the Court below on 29.10.2012. Even before the Court below, they have waited for more than 6 months, but fighting with each other, silently. The respondent did not appear before the Court.
9.The couples have taken a decision to get divorce by mutual consent during the time when they were called for personal enquiry. Only thereafter, they have filed this petition on 17.10.2014.
10.It is the contention of the learned counsels on both sides that the 'cooling-off period' need not be observed in this case, as already the couples had reflecting time before the Lower Court and without waiting for 6 months, the Court is empowered to grant a decree for divorce. In support of the contention, the decision reported in 2013-1-L.W.118 (Devinder Singh Narula vs. Meenakshi Nangia) is relied upon, whereunder it has been held that even though the Legislature in its wisdom has provided for the cooling period of 6 months, when it is shown that parties have already waited for 6 months, the Court can consider the petition for divorce by mutual consent. Therefore, when the parties have already waited for more than a year with no change of mind towards reunion and the marriage had become a deadwood, there is no purpose in denying the relief of divorce by mutual consent.
11.The petition for divorce filed by the husband along with the joint memo is treated as the petition for divorce, and the decree for divorce is granted by dissolving the marriage between the parties that took place on 23.11.2011.
12.With the relief granted above, the Civil Miscellaneous Appeal is disposed of. No costs.
To
1.The II Additional District and Sessions Judge, Tiruchirappalli.
2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.