Kerala High Court
Stephen vs Nil on 18 March, 2013
Author: Pius C.Kuriakose
Bench: Pius C.Kuriakose
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934
Mat.Appeal.No. 209 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN OP.106/2012 of FAMILY COURT, KALPETTA
APPELLANT(S)/PETITIONERS :
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1. STEPHEN,
S/O.DEVASSIA, AGED 32 YEARS, KANIYODICKAL HOUSE, SISUMALA,
SISUMALA P.O., SULTHANBATHERY TALUK, WAYANAD DISTRICT.
2. MARY @ JESLY JOSEPH,
D/O.JOSEPH, AGED 29 YEARS, KOONAMPARAMBIL HOUSE,
KADALMADU, KADALMADU PO, SULTHAMNBATHERY TALUK,
WAYANAD DISTRICT.
BY ADVS.SRI.BABU S. NAIR
SRI.K.RAKESH
RESPONDENT(S):
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.NIL
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
18-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/-
PIUS C. KURIAKOSE &
P.D. RAJAN, JJ.
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Mat. Appeal No. 209 of 2013
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Dated this the 18th day of March, 2013
J U D G M E N T
Pius C. Kuriakose, J.
Under challenge in this appeal preferred by the petitioners in O.P.No.106 of 2012 is the order of the Family Court dismissing the joint petition filed under Section 10 A of the Divorce Act on the ground that in terms of the said Act (Section 10 A), petition is not maintainable as the parties have not been living separately for a period of 2 years or more prior to the institution of the petition. In short, the original petition is rejected as premature.
2. Drawing our attention to the decision of the Devision Bench of this court in Saumya Ann Thomas v. Union of India [2010 (1) KLT 869], it was submitted by the learned counsel for the appellant that the petition under Section 10 A of the Act can be maintained if the couple had been living separately one year prior to the institution of the proceedings. The above submission, certainly would get support from the judgment in Saumya Ann Thomas v. Union of India (supra). But, we find that the proceedings before the court below is instituted within 9 Mat. Appeal No. 209 of 2013 2 months of the parties residing separately. When this aspect of the matter was brought to the notice of the learned counsel Sri. R. Rakesh, he would place reliance on the decision of this court in Janardhanan v. Syamala Kumary [1990(1) KLT 328] and submit that it is the settled law that at the moment when more than 20 months have passed since the parties became separated, the Original Petition is maintainable. We do not think that judgment in Janardhanan v. Syamala Kumary (Supra) supports the above submission of Adv. Rakesh R. The ratio of the above decision is only that a joint petition under Section 13(B) of Hindu Marriage Act for divorce can be filed in a proceeding already initiated under Section 13 and it is not necessary that joint petition under Section 13(B) should be initiated as an original Petition. This is not a case wherein an original Petition is regularly instituted and the petitioners file an interlocutory application. Thus it is a case where the very original petition instituted by the petitioners was instituted before the expiry of the statutory period. In other words, the original petition is instituted in violation of a statutory bar. When there is a statutory bar, the dismissal or rejection of the proceeding is Mat. Appeal No. 209 of 2013 3 implicit. We do not find any infirmity at all about the impugned order.
Appeal is dismissed. But we make it clear that this judgment will not stand in the way of the petitioners moving the Family Court afresh by appropriate proceedings. Considering the fact, that the parties have been living separately for the past 20 months and that they moved the court jointly some 20 months before, we direct the Family Court, which comes to be in seizin of the matter, to give top priority to the proceedings to be initiated by the petitioners.
PIUS C. KURIAKOSE (JUDGE).
P.D. RAJAN (JUDGE).
DSV/-
Mat. Appeal No. 209 of 2013 4