Kerala High Court
Anup Disalva vs Union Of India on 19 July, 2022
Author: A. Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP (FC) No.398/2022 1/4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
Tuesday, the 19th day of July 2022 / 28th Ashadha, 1944
OP (FC) NO. 398 OF 2022(R)
IA 3232/2022 IN UNNUMBERED O.P. NO./2022 OF FAMILY COURT,ERNAKULAM
PETITIONER/PETITIONER:
1. ANUP DISALVA, AGED 30 YEARS, S/O DISALVA KOSHY,
VADUTHALA HOUSE, CRA -83 A, NALANCHIRA P.O,
THIRUVANANTHAPURAM- 695 015.
2. LIBNI MARY JACOB, AGED 28 YEARS,
D/O JOHN P.JACOB, PUTHENMADOM, MATTOM(N),
THATTARAMBALAM P.O., MAVELIKKARA
NOW RESIDING AT PUSHPAMANGALAM, RAJAGIRI P.O.,
THRIKKAKARA NORTH, ERNAKULAM- 683 104.
RESPONDENT/RESPONDENT:
NIL
OP (family court) praying inter alia that in the circumstances
stated in the affidavit filed along with the OP (FC) the High Court be
pleased to set aside Exhibit P3 order passed in IA. No 3232/2022 in
unnumbered O.P. No. /2022 by the Family Court, Ernakulam and grant
permission to the petitioners to present the joint petition for divorce by
waiving statutory period of one year for filing mutual divorce
application.
This petition again coming on for admission upon perusing the
petition and the affidavit filed in support of OP (FC) and this Court's
order dated 08/07/2022 and upon hearing the arguments of M/S.SIKHA G.NAIR,
SANDHYA.K.NAIR, ANJANA SURESH.E and BEENA N.KARTHA, Advocates for the
petitioners and of ADVOCATE SMT.LEELA R. and ADVOCATE SMT.SANDHYA RAJU,
AMICI CURIAE, the court passed the following:
P.T.O
OP (FC) No.398/2022 2/4
A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.
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O.P (FC) No.398 of 2022
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Dated this the 19th day of July, 2022
O R D E R
A. Muhamed Mustaque, J This original petition highlights incongruousness of law as it stands under the Divorce Act. Both parties are before us today in person. Both have grounds for divorce as enumerated under Section 10 of the Divorce Act for the willful non-consummation of the marriage. Both attributes fault to other but agreed that the marriage has not been consummated. They are also realistic to this fact. On realisation, they moved petition for divorce on mutual consent.
2. Their marriage was solemnised on 31.10.2021. The Family Court noted that without expiry of one year after the marriage they cannot move the joint petition. However, it is to be noted that for seeking divorce on enumerated grounds under Section 10, one need not wait for one year after the marriage. The basic conflict in law based on fault and on mutual petition in regard to waiting period for divorce will have to be explored by this Court.
3. We adjourn this matter to 26.07.2022 for detailed OP (FC) No.398/2022 3/4 O.P (FC) No.398 of 2022 ..2..
hearing.
We seek assistance of Advocates Leela R and Sandhya Raju as Amici Curiae.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE Sd/-
SOPHY THOMAS, JUDGE PR 19-07-2022 /True Copy/ Assistant Registrar OP (FC) No.398/2022 4/4