Kerala High Court
Dr. M.G. Viji vs P.T. Omana on 22 August, 1998
Equivalent citations: I(1999)DMC94, 1998 A I H C 4741, (1998) 2 KER LJ 446, (1999) 2 MARRILJ 632, (1999) 2 CURCC 467, (1999) 1 DMC 94, (1998) 2 HINDULR 682
Author: G. Sivarajan
Bench: G. Sivarajan
JUDGMENT P.A. Mohammed, J.
1. This appeal is directed against the judgment in O.P. (HMA) No. 54 of 1994 on the file of the Sub Judge's Court, Mavelikara dismissing a petition filed under Section 13(1 )(ia) and (iii) of the Hindu Marriage Act, 1955 (for short 'the Act'). The appellant herein was the petitioner before the Court below and the counter petitioner is the respondent herein. The marriage between the appellant and the respondent was solemnised on 12.11.1992 and they lived together till July, 1993. Thereafter the married life was not smooth and there were frequent squabbles between the husband and wife. This unpleasant situation in the family resulted in filing the present petition for dissolution of marriage. The husband alleged cruelty and unsoundness of mind against the wife. After the enquiry the Court below came to die conclusion that the grounds alleged for dissolution had not been made out and therefore, the petition was dismissed.
2. When this appeal came up for hearing today before us, the Counsel on both sides uniformly submitted that the parties had already come to a settlement and they were ready to separate themselves by mutual consent. They, therefore, prayed that an order of divorce under Section 13-B of the Act may be passed. In order to have such a decree, both parties jointly filed C.M.P. No. 4602 of 1998. It is appropriate to extract the averments contained in the affidavit filed in support of the said joint petition.
"The first among us is the appellant and second among us is the respondent in the above M.F.A. which is pending before this Hon'ble Court. As per settlement made between us we came into a consensus that we are ready to separate by mutual consent, since it is impossible for us to live together further.
A draft for Rs. 1,50,000/- and four soverigns of gold had been transferred by the first among us and the same is received by the second among us. There is no other claim or liability or any other obligation is pending and will not arise in between us. Hence it is humbly prayed that this Hon'ble Court may be pleased to pass an order of divorce under Section 13(B) of the Hindu Marriage Act of 1955."
Both parties have also made a further prayer to waive the condition of 'waiting period' of six months as envisaged under Sub-section (2) of Section 13B of the Act.
3. The question before us is whether a decree can be passed by this Court for dissolution of the marriage by a decree of divorce under Section 13-B of the Act. Under Sub-section (1) of Section 13-B both parties to a marriage are allowed to present a petition to the District Court for dissolution of the marriage on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. It is not disputed that the parties in this case have been living separately since July, 1993. The circumstances in this case sufficiently reveal that the marriage has been irretrievably broken. Therefore, the parties having realised their abhorant and detestable family life came before this Court to rescue them from perpetual agony with a compromise petition prepared on mutual assent. After a prolonged legal battle the parties themselves found their welfare not living in unison but in separation, permanently. We are abundantly satisfied that the marriage between the appellant and the respondent had been practically and emotionally dead. In such circumstances the life of the spouses shall not be allowed to put in perpetual agony and despair. When such circumstances are brought to the notice of this Court, it is for us to find out a final solution on principles of justice and equity. When the parties themselves have found out their welfare in a mutually agreed manner, this Court will not normally stand against it unless there are strong reasons. In this case we are inclined to allow the dissolution of marriage by mutual consent.
4. As pointed out earlier the petition envisaged under Section 13-B has to be preferred before the District Court. Though in the present case the petition for the dissolution of marriage was originally sought under Section 13(ia) and (iii) it was dismissed by the Court below. Both parties are before us now in the appeal filed by the husband. It is in that appeal the joint petition praying for decree by mutual consent has been filed. What we see here is that the contest between the parties had been withdrawn and a compromise petition seeking for a decree by mutual consent was sought for. No doubt this is a smaller relief than the relief originally framed. This is a relief which is always existing for the parties to invoke at any point of time. A Division Bench of this Court in Karthikeyan & Sarojini, 1998 (1) KLT164, after placing reliance on the decision of the Madras High Court in Dr. H.T. Vira Reddi v. Kistamma, AIR 1969 Madras 235, has allowed a decree for judicial separation under Section 13-A of the Act while dealing with an appeal against the order of the Court below dismissing, a petition under Section 13(A) of the Act. We are inclined to apply the same course in the circumstances of this case and to hold that the petition before this Appellate Court is competent. A similar view we have taken in the judgment in M.F.A. No. 1171 of 1997 dated 1.6.1998.
5. The Counsel on both sides submitted that the procedural requirement of waiting period of six months shall be waived in view of the mutual consentrecorded in writing and the reliance is placed on the Division Bench decisions of this Court in Visaiakshi v. Shivaraman Nair, 1991 (1) KLT 910=11 (1992) DMC 356; and Sreelatha v. Deepthy Kumar, 1998 (1) KLT 195. This is a requirement under Subsection (2) of Section 13-B to be observed while passing the decree. When the parties filed a joint petition for a decree on mutual consent, insistance on the waiting period is only a formality. No doubt the Court can dispense with this formality when there are justifying circumstances. In this context, the Counsel for the parties uniformly point out that the parties have been living separately since July, 1993 and the petition for divorce has been filed in the year 1994. Accordingly we feel, a liberal view can be taken as to the procedural requirement and the circumstances of this case will warrant to dispense with the waiting period of six months. The said requirement is, therefore, waived in the circumstances of this case.
6. In view of what is said above, the joint petition C.M.P. No. 4602 of 1998 is allowed and it is recorded. Accordingly we pass a decree for divorce under Section 13-B on mutual consent as agreed to by the appellant as well as the respondent. We also dispense with the waiting period of six months as aforesaid. We also set aside the impugned judgment of the Court below. The appeal is disposed of as above.