Kerala High Court
Philipose Mathew vs Nil on 22 February, 2010
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36119 of 2009(R)
1. PHILIPOSE MATHEW, AGED 47 YEARS,
... Petitioner
2. MARIAMMA, AGED 39 YEARS, D/O. AUSEPH
Vs
1. NIL
... Respondent
For Petitioner :SRI.M.R.RAJESH
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :22/02/2010
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
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W.P.(C) No. 36119 of 2009-R
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Dated this the 22nd day of February, 2010
JUDGMENT
Basant,J.
Can the waiting period after filing the joint petition for divorce under Sec.13B of the Hindu Marriage Act, Sec.10A of the Indian Divorce Act and Sec.28 of the Special Marriage Act be waived by the court suo motu or on the application of both parties?
2. This question arose for consideration in various petitions and we posted all such cases together for hearing. Sri. G.Shrikumar, Advocate, has rendered assistance as amicus curiae for the court. We have had the advantage of hearing Advocates M/s S. Subash Chand, , Sandhya Raju, M.R. Rajesh, R. Sunilkumar, Soby K. Francis and others on the question.
W.P.(C) No. 36119 of 2009 -: 2 :-
3. We have answered that question in Mat.Appeal No.633/08 today. The finding on that question is extracted below:
"We may, in these circumstances summarise the law and state that not only conditions A, B, C and D below; but condition E below also are mandatory requirements that must all co-exist before the court's power under Sec.13B of the Hindu Marriage Act, Sec.10A of the Divorce Act and Sec.28 of the Special Marriage Act to pass the decree for dissolution on the basis of a joint application for divorce on mutual consent is invoked:
A. Solemnisation of marriage.
B. The mutual agreement of the spouses that the marriage should be dissolved.
C. That the spouses have been living separately for the specified period of one year/two years prior to the presentation of the application.
D. They have not been able to live together during this period; and E. Minimum period of six months and maximum period of 18 months has elapsed from the date on which the application for divorce under Sec.13B of the Hindu W.P.(C) No. 36119 of 2009 -: 3 :- Marriage Act and Sec.10A of the Divorce Act is filed and the spouses have made the second motion for dissolution thereafter."
4. Having so understood the law, we look at the facts in this case. The parties are Christians. Their marriage was solemnized on 10/4/89. The spouses started separate residence on 16/3/92. They filed a joint application for divorce on mutual consent under Sec.10A of the Divorce Act on 21/11/09. The court posted the case to 8/2/10 for counselling. The parties prayed that the waiting period may be dispensed with. The court has not taken up that petition for consideration. It is prayed that a direction may be issued to consider such application.
5. In the light of the law that we have already ascertained, which we have extracted above, the prayer to dispense with the period of six months under Sec.10A of the Divorce Act is found to be without any merit. This petition is accordingly dismissed.
6. We may hasten to observe that the personal presence of such applicants/spouses in the application for dissolution of marriage by mutual consent need not be unnecessarily insisted by the court. It is submitted that the parties find it difficult to W.P.(C) No. 36119 of 2009 -: 4 :- personally appear after the period of waiting. After the period of waiting, a second motion need only be made and personal presence of the spouses need not be insisted. The learned counsel can make such second motion on their behalf. Their presence need not also be insisted to tender evidence. Ordinarily chief affidavits can be filed by them to state their case on oath. Hence the personal presence of the parties need not ordinarily be insisted. In the instant case, conciliation has already taken place, it is submitted. Even otherwise, ritualistic insistence on personal presence of the parties for conciliation/counselling need not be made by a court in a joint application for divorce on the ground of mutual consent, if the court is otherwise satisfied about the genuineness of the application.
7. In this case it is submitted that in pursuance of the interim orders dated 22/12/09, attempt to conciliate has already taken place and failed. The learned counsel for the petitioners expressed an apprehension that they may be directed to appear in person again for conselling as this Court only directed the holding of conciliation. We make it clear that attempt for W.P.(C) No. 36119 of 2009 -: 5 :- conciliation having already taken place, it is not necessary now to insist on the personal presence of the petitioners for counselling also.
Sd/-
R. BASANT (Judge) Sd/-
M.C. HARI RANI (Judge) Nan/ //True Copy// P.S. to Judge