Kerala High Court
Deepa vs Haridas on 16 November, 2009
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 377 of 2009()
1. DEEPA, D/O. GOPALAN, AGED 33 YEARS,
... Petitioner
Vs
1. HARIDAS, S/O. SIVARAMAN,
... Respondent
For Petitioner :SMT.P.K.RADHIKA
For Respondent :SRI.N.RAGHURAJ
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :16/11/2009
O R D E R
R.BASANT & M.C. HARI RANI,JJ
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MAT APPEAL NO. 377 OF 2009
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DATED THIS THE 16TH DAY OF NOVEMBER 2009
ORDER
Basant,J.
This appeal is preferred by the appellant-wife aggrieved by the dismissal of her application for divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion. The said O.P.,i.e. No.618/2007 was tried along with O.P.No. 36/2008 filed by the respondent-husband under Section 9 of the Hindu marriage Act for a decree for restitution of conjugal rights. Both petitions stood dismissed. The wife has come up in appeal. The husband appears to have accepted the dismissal of his application for restitution of conjugal rights.
2. Be that as it may, during the pendency of these proceedings, the parties have settled all their outstanding disputes. They have been residing separately for a period far Mat appeal No. 377/2009 -2- exceeding two years. They are now satisfied that they cannot live together. They have mutually agreed that the marriage between them can be dissolved by mutual consent. Accordingly, I.A. No. 3358/2009 has been filed by them under Section 13B of the Hindu Marriage Act. They pray that the marriage between them may be dissolved by mutual consent by an order under Section 13B of the Hindu Marriage Act. They have further made a request that the requirement of waiting for a period of six months to make a second motion under Section 13 B(2) may be dispensed with. I.A.No.3358/2009 is duly signed by both spouses and is counter signed by their respective counsel. Affidavits have been filed by both spouses to confirm the terms of the petition and also pray for dispensation of the requirement of waiting for a period of six months.
3. We have heard the learned counsel. We are satisfied that the parties have voluntarily and willingly agreed to dissolve their marriage by mutual consent under Section 13 B of the Hindu Marriage Act. We are satisfied that all the requirements of Mat appeal No. 377/2009 -3- law are satisfied. We further take a view that invoking our extraordinary constitutional jurisdiction under Articles 226 & 227 of the Constitution of India and also the inherent powers available with this Court, the prayer for dissolution of marriage by mutual consent can be accepted dispensing with the requirement of waiting for six months under Section 13B(2) of the Hindu Marriage Act. The terms of agreement have been reduced to writing and a copy of the said agreement has been produced as Annexure-A which is duly signed by the parties and the witnesses.
4. We are satisfied that this appeal can now be allowed in part. The impugned order can be upheld. The prayer for divorce by mutual consent can be accepted.
5. In the result
a) this appeal is allowed in part.
b) the impugned order is upheld.
c)I.A.No.3358/2009 is allowed and the marriage solemnised on 20-12-2001 between the parties is hereby dissolved by an Mat appeal No. 377/2009 -4- order under Section 13 B of the Hindu Marriage Act. I.A.No. 3359/2009 for dispensing with waiting period of six months under Section 13B(2) of the Act is allowed.
d)I.A.No.3389/2009 is allowed and it is directed that Annexure-A document dated 8-10-2009 shall be appended to this appellate decree.
R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.
Mat appeal No. 377/2009 -5-